UNITED-STATES  CIRCUIT  COURT. 


NORTHERN  DISTRICT  OF  ILLINOIS. 


IN  CHANCERY. 


OCTOBER  TERM.  A.  D.    1885. 


GILBERT  D.  MILLSPAUGH 

TS. 

THUS.  C.  McEVVEN, 
MILTON   McEWEN. 

AND 

THE  TRUSTEES  OF  THE  PULLMAN  LAND  ASSOCIATION. 


GENERAL  AND  SPECIAL  DEMURHER  TO  THE 
BILL  OF   COMPLAINT. 


SANDERS  &  HAYNES, 
FOR  THOS.  C.  AND  MILTON  McEwEN. 


SPRINGFIELD,  ILL.: 

H    W.  KOKKEK,  STATE  PRINTER  AND  BINDT.K. 

1885 


UNITE!)  STATES  CIRCUIT  COURT. 


NORTHERN  DISTRICT  OF  ILLINOIS. 


IN  CHANCERY. 


OCTOBER  TERM,  A.  D.   1885. 


GILBERT  D.  MILLSPAUGH 

vs. 

THOS.  C.  McEWEN, 
MILTON  McEWEN, 

AND 

THE  TRUSTEES  OF  THE  PULLMAN  LAND  ASSOCIATION. 


GENERAL  AND  SPECIAL  DEMURRER  TO  THE  BILL  OF 

COMPLAINT. 


TITLE  TO  THE  LAND  IN  CONTROVERSY. 

The  substantial  averments  as  to  the  title  of  the  160  acres  of 
land  in  controversy  are  as  follows : 


2 

In  the  war  of  181V2,  Henry  Millspaugh  was  a  private  in  the 
army  of  the  United  States,  and  under  the  laws  of  Congress  was 
entitled  to  a  land  warrant,  granting  to  him  160  acres  of  govern- 
ment land.  Henry  Millspaugh  was  never  married,  nor  did  he 
ever  apply  for  or  receive  his  land  warrant.  But  dying  prior  to 
1847,  intestate,  left  as  his  only  heirs  David  Millspaugh,  his 
brother,  and  Christina,  his  sister,  who,  in  1803,  married  William 
Lynn.  All  of  these  parties  at  this  time  lived  in  Yates  county, 
New  York. 

On  June  17,  1847,  a  land  warrant  for  160  acres  of  the  public 
lands  was  in  due  form  of  law  issued  from  the  land  office  of  the 
United  States  in  the  names  of  David  Millspaugh  and  Christina 
Lynn,  as  the  only  heirs  at  law  of  Henry  Millspaugh. 

That  on  August  30,  1849,  said  land  warrant  was  located 
through  the  United  States  land  office  at  Chicago,  upon  the 
southeast  quarter  (S.  E.  £)  of  section  fifteen  (S.  15),  township 
thirty-seven  north  (T.  37  N.),  range  fourteen  east  (E.  14  E.)  of 
the  third  principal  meridian  (3d  P.  M.),  in  Cook  Co.,  Illinois, 
which  is  the  land  in  controvery,  and  subject  to  entry  at  that 
time. 

On  November  23,  1849,  letters  patent  from  the  United  States 
were  issued  jointly  to  David  Millspaugh  and  Christina  Lynn. 

July  1,  1849,  David  Millspaugh  died,  testate,  and  seized  and 
possessed  of  an  undivided  half  interest  in  said  land  warrant, 
leaving  as  his  only  heirs  at  law  his  widow  and  five  children, 
to-wit :  Nancy,  Epha,  Frances,  William  S.  and  Archibald,  and 
one  grandson,  Wm.  F.  Thompson,  the  only  heir  at  law  of  Jane 
Thompson,  a  child  of  the  said  David  Millspaugh,  who  died  in 
830. 


The  bill  avers  that  the  \\  ill  of  David  Millspaugh  was  duly  made 
and  published  in  form  sufficient  to  pass  real  estate  under  the 
laws  of  Illinois. 

That  in  said  Will,  David  Millspaugh  devised  and  bequeathed  to 
his  son  Archibald  all  other  real  estate  and  lands  of  any  and 
every  description  of  which  he  might  die  seized ;  and  appointed 
said  Archibald  executor  of  the  Will. 

September  3,  1849,  the  Will  was  duly  proved  and  admitted  to 
probate,  as  a  Will  of  real  and  personal  property,  according  to  the 
laws  of  the  State  of  New  York,  in  the  Surrogate's  Cqurt,  in  the 
County  of  Yates  and  State  of  New  York,  a  court  having  jurisdic- 
tion of  the  matter,  and  recorded  in  Cook  Co.,  111.,  in  1884. 

In  the  year  1851,  Jane  Millspaugh,  widow  of  David,  died,  and 
Archibald  Millspaugh  and  family  moved  to  Michigan. 

May  29,  1856,  Archibald  Millspaugh  (who  had  married),  with 
his  wife  and  William  S.  Millspaugh  and  his  wife,  executed  and 
delivered  to  the  defendants,  Thomas  C.  McEwen  and  Milton 
McEwen,  a  quit-claim  deed  of  that  date,  of  and  relating  to  the 
land  in  Cook  Co.,  Illinois,  for  which  said  Patent  had  been  issued. 

That  in  the  same  year,  1856,  Thomas  C.  McEwen  and  Milton 
McEwen,  obtained  quit-ctaim  deeds  from  the  other  hiers  of 
said  David  Millspaugh  for  their  several  supposed  interests  as 
heirs  at  law  of  said  David  Millspaugh.  That  at  the  time  of  the 
execution  of  said  deeds,  from  the  recitals  therein,  Frances  ap- 
pears to  be  a  married  woman,  and  her  Imsband  does  not  join  in 
the  deed.  That  from  Wm.  F.  Thompson  and  wife  the  said 
McEwens  obtained,  about  the  same  time,  a  quit-claim  deed,  pur- 
porting to  be  for  the  south-«r.sf  quarter  (S.  W.  5)  of  section  fifteen 


(S.  15),  township  thirty-seven  north  (T.  37  N.),  range  fourteen 
east  (E.  14  E.),  of  the  third  principal  meridial  (3d  P.  M.),  in  Cook 
Co.,  Illinois. 

That  on  May  26,  1856,  the  said  Thomas  C.  and  Milton  MeEwen 
obtained  a  quit-claim  deed  from  Christina  Lynn,  whose  husband, 
Win.  Lynn,  was  then  living,  in  the  words  and  figures  following, 
to-wit : 

"This  indenture,  made  this  twenty-sixth  clay  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-six,  wit- 
nesseth  that  I,  Christina  Lynn,  sister  and  heir  at  law  of  Henry 
Millspaugh,  deceased,  wrho  was  a  recruit  of  Lieutenant  T.  W.  Den- 
ton,  of  Thirteenth  Regiment,  United  States  Infantry,  war  of  1812, 
with  Great  Britain,  of  the  County  of  St.  Clair  and  State  of  Michigan, 
party  of  the  first  part,  in  consideration  of  the  sum  of  forty -three 
dollars  in  hand  paid  by  Milton  and  Thomas  C.  McEwen,  of  the 
County  of  Orange  and  State  of  New  York,  party  of  the  second 
part,  the  receipt  of  which  is  hereby  acknowledged,  do  hereby  re- 
lease, grant,  bargain  and  quit-claim  unto  the  said  party  of  the 
second  part,  their  heirs  and  assigns,  forever,  all  her  right,  title, 
claim  and  interest  in  that  certain  tract  of  land  granted  by  the 
United  States  unto  David  Millspaugh  and  Christina  Lynn,  the 
brother  and  sister  and  only  heirs  at  law  of  Henry  Millspaugh, 
deceased,  as  follows,  to-wit : 

"The  southeast  quarter  of  section  numbered  fifteen  (_5),  in  town 
ship  numbered  thirty-seven  (37),  north  of  range  numbered  four- 
teen (14),  east,  in  the  district  of  lands  subject  to  sale  at  Chicago, 
State  of  Illinois,  containing  one  hundred  and  sixty  acres,  by 
letters  patent  bearing  date  of  November  twenty-third,  in  the  year 
of  our  Lord,  one  thousand  eight  hundred  and  forty-nine,  and 
founded  upon  warrant  number  27,495,  reference  being  made  to 
said  pantent  will  more  fully  appear. 

"To  have  and  to  hold  the  said  premises  with  all  the  appurte- 
nances thereunto  belonging,  or  in  anywise  appertaining,  to  their 
only  proper  use,  benefit  and  behoof  of  said  parties  of  the  second 
part,  their  heirs  and  assigns,  forever. 

"In  witness  whereof,  the  said  grantors  have  hereunto  set  our 
hand  and  seals  the  day  and  year  first  above  written. 

her 

"CHRISTINA  +  LYNN,        [SEAL] 

mark  • 

"WILLIAM  LYNN.  [SEAL] 

"Signed,  sealed  and  acknowledged  in  presence  of 

"MARY  LYNN, 
"OBED  SMITH." 


"STATE  OF  MICHIGAN,   { 
"COUNTY  OF  ST.  CLAIR.       \ 

"On  this  twenty-seventh  day  of  May,  A.  P.  1856,  before  me,  a 
Justice  of  the  Peace  in  and  for  said  County  of  St.  Clair,  personally 
came  Christina  Lynn  and  William  Lynn,  her  husband,  known 
to  me  to  be  the  persons  who  executed  the  foregoing  instrument, 
and  acknowledged  the  same  to  be  their  free  act  and  deed.  And 
the  said  Christina  Lynn  having  been  by  me  privately  examined, 
separate  and  apart  from  the  said  husband,  and  fully  understand- 
ing the  contents  of  the  foregoing  instrument,  acknowledged  that 
she  executed  said  deed  freely  and  without  any  force  or  compul- 
sion from  her  said  husband,  or  from  any  one. 

"OBED  SMITH, 
"Justice  of  the  Peace." 


In  the  year  1871,  Archibald  Millspaugh  died  intestate,  leaving 
as  his  only  heirs  at  law  his  widow,  Sarah  B.  Millspaugh,  and  the 
complainant,  Gilbert  D.  Millspaugh.  On  February  17,  1877,  Sarah 
E.  Millspaugh  died. 

In  1875,  Thomas  C.  McEwen  executed  and  delivered  a  deed 
purporting  to  convey  to  Milton  McEwen  an  undivided  half  inter- 
est in  the  N.  W.  1  and  N.  E.  £  of  S.  E.  £  of  Sec.  15,  T.  37,  north 
range  fourteen  east  of  3d  P.  M.,  in  Cook  Co.,  Illinois,  and  at 
about  same  time  Milton  McEwen  executed  and  delivered  to 
Thomas  C.  McEwen  an  undivided  half  interest  in  and  to  the 
S.  E.  ^  and  S.  W.  \  of  same  quarter  section. 

That  on  March  12,  1880,  said  Milton  McEwen  and  wife  exe- 
cuted and  delivered  to  Huntington  W.  Jackson  warranty  deed,  of 
common  statutory  form,  purporting  to  convey  to  said  Jackson 
the  North  half  (N.  £)  of  the  southeast  quarter  (S.  E.  £)  of  section 
fifteen  (S.  15),  township  37  north  (T.  37  N.),  range  fourteen  east 
(R.  14  E.),  of  the  third  principal  meridian,  in  Cook  County,  Illi- 
nois. 


And  on  March  15,  1880,  the  srJd  Thomas  C.  McEwen  executed 
and  delivered  to  said  Huntington  W.  Jackson  a  similar  deed,  of 
like  form,  purporting  to  convey  to  said  Jackson  the  south  half 
(S.  £)  of  said  quarter  section. 

That  in  May,  1880,  said  Huntington  W.  Jackson  executed  and 
delivered  to  Geo.  M.  Pullman  a  quit-claim  deed,  purporting  to 
convey  to  said  Pullman  all  the  grantor's  interest  in  and  to  the 
whole  of  said  quarter  section. 

That  the  said  Geo.  M.  Pullman  and  wife  executed  and  delivered 
to  the  defendant,  the  Trustees  of  the  Pullman  Land  Association, 
a  quit-claim  deed,  purporting  to  convey  to  said  defendant  all 
their  interest  in  and  to  that  portion  of  said  quarter  section  com- 
prised within  the  following  metes  and  bounds,  to- wit : 

"Beginning  at  the  S.  W.  corner  of  the  S.  E.  }  of  said  Sec.  15, 
running  thence  north  along  the  west  line  of  the  said  S.  E.  ^  of 
said  Sec.  15  to  the  N.  W.  corner  of  said  quarter  section  ;  thence 
east  along  the  north  line  of  the  said  S.  E.  ^  of  said  Sec.  15,  to 
the  west  line  of  the  Illinois  Central  Railroad  right  of  way ;  thence 
southwesterly  along  the  west  line  of  said  right  of  way  to  the  south 
line  of  said  Sec.  15  ;  thence  w,  st  along  said  south  line  of  said  Sec. 
15  to  the  place  of  beginning,  containing  78  acres,  more  or  less." 

Under  the  above  named  Patent  and  subsequent  deeds,  the 
Trustees  of  the  Pullman  Land  Association  have  held  undisputed 
possession,  and  occupied  said  land,  and  erected  large  and  very 
extensive  manufactories,  and  the  large  town  of  Pullman  has  been 
built  up  during  this  undisturbed  possession  and  occupation  since 
the  date  of  their  deeds  in  May,  1880. 

THE  PRAYER  OF  THE  BILL. 

.  The  relief  sought  for  by  the  bill  of  complaint  is,  that  the  deeds 
of  conveyance  from  Archibald  Millspaugh,  and  the  other  heirs  of 
David  Millspaugh,  to  Thomas  C.  McEwen  and  Milton  McEwen 


and  wife,  to  Hunting-ton  W.  Jackson ;  and  from  Huntington  W. 
Jackson  to  George  M.  Pullman,  and  from  George  M.  Pull- 
man and  wife  to  Trustees  of  the  Pullman  Land  Associa- 
tion, and  all  title  or  claim  of  title  of  said  Trustees  of 
the  Pullman  Land  Association  to  the  said  undivided  half  of 
said  land  (16P  acres),  by  virtue  of  said  deeds,  be  declared  in- 
valid and  as  of  no  effect  against  the  rights  of  the  complainant. 
That  the  Trustees  of  the  Pullman  Land  Association  may,  under 
the  direction  of  the  Court,  lender  a  full  and  perfect  account  of 
all  rents  and  profits  derived  by  it  from  the  said  tract ;  and  that 
the  defendant,  the  Trustees  of  the  Pullman  Land  Association, 
and  all  persons  claiming  under  it,  may  be  perpetually  enjoined 
from  setting  up,  or  asserting,  or  attempting  to  put  in  force,  or 
use  any  right,  title  or  interest  in  or  to  said  land,  or  any  part 
thereof,  under  said  deeds  or  otherwise  ;  and  that  the  complainant 
may  be  adjudged  and  declared  the  true,  equitable  and  beneficial 
owner  of  said  tract  of  land  now  claimed  and  possessed,  as  afore- 
said, by  the  said  Trustees  of  the  Pullman  Land  Association,  and 
be  entitled  to  have  and  receive  the  legal  title  thereto  in  fee ;  and 
for  such  other  and  further  relief  as  equity  may  require. 

ARGUMENT  ON  DEMURRER. 

The  grounds  in  complainant's  bill,  on  which  this  court  of  equity 
is  asked  to  cancel  the  deeds  through  which  the  Trustees  of  the 
Pullman  Land  Association  hold  and  occupy  the  land  in  con- 
troversy, are,  first,  that  the  deeds  to  the  McEwens  were  not  suffi- 
cient in  form  and  manner  of  execution  to  pass  the  title  to  the 
lands  in  controversy,  to  the  exclusion  of  the  interests  of  the  com- 
plainant; and,  second,  that  the  deeds,  whether  sufficient  or  not 
in  form  and  execution  to  pass  the  title  to  the  lands  described, 
were  obtained  from  the  grantors  by  misrepresentation  and  fraud 


8 

on  the  part  of  the  grantees,  Thomas  C.  and  Milton  McEwen ; 
and  that  their  grantees,  Huatington  W.  Jackson,  Geo.  M.  Pull- 
man, and  the  Trustees  of  the  Pullman  Land  Association,  had 
knowledge  of  the  supposed  misrepresentations  and  fraudulent 
acts  of  their  grantors,  Thomas  C.  and  Milton  McEwen. 

FIRST—  AS  TO  THE  SUFFICIENCY  OF  THE  DEEDS  IX  FORM  AND 
EXECUTION. 

The  legal  title  of  the  whole  160  acres  comes  direct  from  the 
United  States  Government  to  the  heirs  of  Henry  Millspaugh,  to- 
wit.,  David  Millspaugh  and  Christina  Lynn,  to  whom  the  land 
warrant  was  issued  in  June,  1847,  located  in  July,  1849,  and 
patent  issued  Nov.  30,  1849. 

Here  the  chain  of  title  divides,  and  an  undivided  half  of  the 
160  acres  descends,  either  by  the  Will  of  David  Millspaugh,  pro- 
bated according  to  the  laws  of  New  York,  September  3,  1849,  to 
the  TifMSHf,  Vivliilrctid  Millspaugij,  a  son,  and  the  sole  executor, 
as  real  estate;  or  it  passes,  by  process  of  law,  to  all  of  the  heirs 
of  David  Millspaugh,  to-wit.,  five  children  :  Nancy,  Epha,  Fran- 
ces, William  S.,  Archibald,  and  a  grandchild,  W'm.  F.  Thomp- 
son, a  son  of  Jane  Thompson,  a  daughter  of  David  Millspaugh, 
who  died  in  1830.  In  either  event,  if  the  deeds  are  held  valid, 
the  title  merges  in  Thomas  C.  and  Milton  McEwen,  through  quit- 
claim deed  of  Archibald  Millspaugh  and  wife,  and  William  S. 
Millspaugh  and  wife,  of  date  May  26,  1856,  and  by  quit-claim 
deeds  from  all  the  other  heirs  at  law  of  David  Millspaugh,  in  the 
year  1856,  executed  and  delivered  to  Thomas  C. .  and  Milton 
McEwen;  the  wife  of  David  Millspaugh  having  died  in  1851, 
thereby  leaving  only  the  five  children  and  one  grandchild  as  sole 
heirs  of  his  property. 


9 

The  land  warrant  issued  in  June  17, 1847,  to  David  Millspaugh 
and  Christina  Lynn,  jointly,  (if  considered  real  estate)  the  un- 
divided half  interest  must  have  passed  by  the  will  to  Archibald 
Millspaugh,  as  devisee,  as  the  averments  of  the  bill  are,  that 
"Da citl  M'dhjxdtfih,  on  July  1,  1849,  died  seized  and  possessed  of 
an  undirided  half  interest  in  MI  id  land  l:onnty  warrant" 
"That  in  and  by  his  last  will  and  testamtfit,  theretofore  dnly  made 
and  jnthlished  in  form  sufficient  to  pass  real  estate  under  the  laws  of  the 
State  of  Illinois,  after  making  therein  various  other  devises  and  be- 
quests, irliicli  do  not  concern  or  affect  the  aforesaid  land  bounty  or  land 
warrant,  the,  said  Darid  Millspaugh  derised  and  beqnethed  to  his  said 
son,  Archibald,  all  other  real  estate  and  lands  of  any  and  every  de- 
scription of  ^vhich  he  might  die  seized."  (Page  2,  lines  1  to  '20,  of  bill.) 

Here  the  complainant  admits  that  the  Will  was  in  due  form  of 
law,  legally  probated  according  to  the  laws  of  the  State  of  New 
York,  for  the  Will  was  made  and  published  in  Yates  county,  New 
York,  and  that  it  was  sufficient  in  form  to  pass  real  estate  under  the 
laws  of  the  State  of  Illinois. 

The  only  question  that  arises  on  this  branch  of  the  case  is, 
whether  this  land  warrant,  located  in  August,  1849,  and  on  which 
Letters  Patent  issued  November  30,  1849 ;  was  real  estate,  and 
passed  under  the  terms  of  the  Will  above  stated. 

Section  2448,  U.  S.  Revised  Statutes,  is  as  follows,  to-wit : 

"Where  patents  for  public  lands  have  been  or  may  be  issued, 
in  pursuance  of  any  law  of  the  United  States,  to  a  person  who 
had  died,  or  who  hereafter  dies,  before  the  date  of  such  patent, 
the  title  to  the  land  designated  therein  shall  inure  to  and  become 
vested  in  the  heirs,  devisees  or  assignees  of  such  deceased 
patentee,  as  if  the  patent  had  issued  to  the  deceased  person  dur- 
ing life." 

This  statute  has  reference  to  the  manner  of  descent  of  the  title 
to  lands  described  in  the  patent  on  the  death  of  the  party  apply- 
ing for  the  same  before  it  issues,  and  settles  the  question  as  to 


10 

icliat  kind  of  piopcrty  ii  is,-  and  in  settling  that  question,  it  also 
settles  the  question  of  hoic  it  shall  pass,  whether  by  the  Will  of 
David  Millspaugh  to  Archibald  Millspaugh,  or  by  process  of  law 
to  the  heirs. 

Under  this  statute,  as  to  the  descent  of  the  land  involved,  it  is 
to  be  considered  as  if  the  patent  had  been  issued  to  David  Mills- 
paugh and  Christina  Lynn  in  the  lifetime  of  David  Millspaugh. 
It  did,  in  fact,  issue  in  their  names,  but  after  David's  death,  and 
during  her  life  time. 

Under  this  statute,  and  the  decisions  of  the  State  and  United 
States  Courts,  we  think  this  patent  must  be  considered  real 
estate,  and  if  so,  the  half  interest  of  David  Millspaugh  passed 
under  the  Will  to  Archibald  Millspaugh. 

"It  is  not  doubted  that  a  patent  appropriated  lands.  Any 
defects  in  the  preliminary  steps  which  are  required  by  law,  are 
cured  by  the  patent.  It  is  a  title  from  its  date,  and  has  always 
been  held  conclusive  against  all  those  whose  right  did  not  com- 
mence previous  to  its  emulation." 

Hooiiagle  et  al.  vs.  Anderson,  1  Wheat.  211. 

"The  patent  appropriates  the  land  and  gives  the  legal  title  to 
the  patentee." 

Boardman  vs.  Reed,  6  Pet.  328. 
White  vs.  Burnley,  20  How.  280. 

"In  Virginia,  the  patent  is  the  completion  of  the  title,  and  es- 
tablishes the  performance  of  every  prerequisite." 

Stringer  et  al.  vs.  The  Lessee  of  Loring  et  al.,  3  Pet.  241. 

"A  patent  appropriates  the  land  called  for,  and  is  conclusive 
against  rights  subsequently  acquired.'' 

Bouldin  et  nx.  vs.  Massie's  Heirs,  7  Wheat.  149. 

Brush  vs.  Ware  el  al.,  15  Pet.  106. 

Taylor  <£  Qtiarlees  vs.  Brown,  o  Crunch,  233. 


11 

The  Statutes  of  the  United  States  make  a  distinction  between 
land  warrants  and  patents,  as  to  the  matter  of  descent.  In  sec- 
tion 2444,  U.  S.  Revised  Statutes,  we  find  *  *  *  "And  all 
military  bounty  land  icarru-nts,  issued  pursuant  to  law,  shall  be 
treated  as  personal  chattels,  and  may  be  conveyed  by  assignment 
of  such  widow,  heirs  or  legatees,  or  by  the  legal  representatives 
of  the  deceased  claimant,  for  the  use  of  such  heirs  or  legatees 
only." 

"Equity  treats  that  as  done  which  is  agreed  to  be  done,  so  that 
money,  which  according  to  a  Will  or  agreement  is  to  be  invested 
in  land,  is  regarded,  in  equity,  as  real  estate,  and  land  which  is 
to  be  converted  into  money,  is  regarded  as  money  accordingly." 

1  Washb.  K.  P.  31,  4th  ed.,  sec.  34. 
Seymour  vs.  Frees,  8  Wall.  214. 

If  this  doctrine  prevail,  this  land  warrant  must,  we  think,  be 
considered  real  estate,  as  it  was  an  agreement  and  contract  on 
the  part  of  the  United  States  Government  to  give  the  parties 
named  160  acres  of  government  land  for  the  services  rendered  by 
their  ancestor  in  the  army  of  the  United  States.  A  land  war- 
rant refers  only  to  land.  It  is  a  contract  to  give  land,  and  noth- 
ing else.  If  this  principle  of  equity  prevails,  this  court  must  treat 
this  agreement  or  contract  by  the  Government  as  having  been 
completed,  and  the  land  located,  and  the  patent  issued ;  and  if  so, 
there  can  be  no  doubt  that  the  land  was  located  and  patent  is- 
sued and  the  land  covered  by  it  would  pass  by  Will  under  such 
terms  as  were  used  in  this. 

Archibald  Millspaugh's  interest,  under  this  Will  to  the  undi- 
vided half  of  the  160  acres,  was  a  vested  estate,  one  -where  there  is 
an  immediate  fixed  right  of  present  or  future  enjoyment. 

I  Washb.  R.  P.  34. 


12 

The  Government  of  the  United  States  warranted  so  much 
land,  a  fixed  amount,  for  his  present  or  future  enjoyment,  and  the 
fact  that  it  was  not  then  located  did  not  render  his  vested  estate 
at  all  indefinite,  or  in  any  way  uncertain.  The  location  of  the 
warrant  was  a  mere  incident,  to  be  performed  by  the  officers  of  the 
Government  whenever  called  upon  by  the  proper  parties,  and  did 
not  in  any  way  whatever  affect  the  amount,  or  right  to  this  vested 
estate.  The  complainant  uses  the  terms,  "died  seized  and  pos- 
sessed of  an  undivided  ha[f  interest  in  said  land  bounty  warrant;" 
also,  the  terms,  "devised  and  brqucthed."  The  term,  "seizin" 
and  "possession,"  in  fact  necessarily  implies  possession,  there 
being  no  difierence  between  "seizin"  and  "possession,"  if  the 
possession  is  with  the  intent  on  the  part  of  him  who  holds  it  to 
claim  a  freehold.  Yet  there  are  distinctions  in  some  of  the  ap- 
plications of  the  words.  Thus,  though  there  may  be  a  concur- 
rent possession  of  the  same  lands  by  several  persons,  there  can- 
not be  such  concurrent  seizin. 

'•Seizin  is  applied  to  estates  of  which  there  is  no  present  pos- 
session, such  as  remainders,  meaning  that  the  party  has  a  fixed 
vested  right  of  future  enjoyment."  Moreover,  the  land  may  be, 
for  a  time,  vacant  as  regards  possession ;  but  the  seizin  (cannot 
at  common  law)  be  in  abeyance  or  suspense,  it  must  always  be  in 
some  one  as  a  freeholder." 

Abbott's  Law  Diet.,  Vol.  2,  457,  458. 
1  Washb.  E.  P.,  3,  et  seq. 
4  Kent  Com.,  388,  389. 

These  terms  refer  to  and  are  applied  to  real  estate,  and  being 
used  by  the  complainant  in  his  bill,  in  a  proceeding  on  demurrer, 
we  have  a  right  to  accept  his  terms,  and  consider  that  under  the 
terms  of  the  Will,  this  land  warrant  and  patent,  or  the  undi- 
vided half  of  it,  passed  to  Archibald  Millspaugh,  and  by  him 
through  his  quit-claim  deed  to  Thomas  C.  and  Milton  McEwen. 


13 

If  the  interest  of  David  Millspangh  to  the  undivided  half  of  the 
land  covered  by  the  land  warrant  did  not  pass  to  Archibald 
under  the  Will,  then  it  remained  a  part  of  his  estate,  and  passed 
by  process  of  law  to  all  his  heirs;  and  if  their  deeds  are  valid, 
the  title  went  to  Thomas  C.  and  Milton  McEwen,  through  their 
quit-claim  deeds  of  May  26,  1856,  and  thereafter  in  the  same 
year.  (Bill,  p.  2,  lines  33-40,  and  p.  3,  lines  1-5.) 

As  to  the  averments  (Bill,  p.  3,  lines  5-9)  that  the  husband  of 
Frances  did  not  join  in  her  deed  to  the  McEwens,  made  in  1856, 
though  the  recitals  therein  indicate  that  at  the  time  she  was  a 
married  woman,  it  is  sufficient  to  say,  that  a  good  and  sufficient 
deed,  executed  in  due  form  of  law,  has  since  been  obtained  for  her 
supposed  interest, — though  it  is  difficult  to  see  how  this  wrould  in 
any  way  affect  the  supposed  interest  of  the  complainant. 

The  averments  in  reference  to  William  F.  Thompson  and  wife 
(Bill,  p.  3,  lines  9-li)  are,  that  about  the  same  time,  (May  26, 
1856,)  Thompson  and  wife  made  a  quit-claim  deed  to  the 
McEwens  for  the  aouih-icest  quarter  (S.  W.  £)  of  section  fifteen, 
(S.  15,)  township  thirty-seven  north,  (T.  37  N,)  range  fourteen 
east,  (R  14  E.)  of  the  third  principal  meridian,  (3d  P.  M.,)  in 
Cook  county,  Illinois.  This  deed  evidently  was  made  with  the 
intention  of  conveying  the  same  land  as  the  other  heirs  conveyed, 
but  was  a  inisdescription  as  to  the  quarter  section  only — and  subject 
in  equity  to  correction — and  discovered,  undoubtedly,  by  the 
investigations  made  for  this  suit.  The  description,  in  all  other 
respects,  is  correct,  and  the  deed  properly  executed. 

If  our  theory  is  correct,  this  Wm.  F.  Thompson  had  no  interest 
in  the  land,  as  it  had  passed  by  the  Will  of  David  Millspaugh  to 
Archibald  Millspaugh,  and  by  him,  through  quit-claim  deed,  to 
the  McEwens. 


14 

The  claim  of  title,  in  any  view  of  the  case,  is  therefore  complete, 
on  the  complainant's  own  showing,  as  far  as  the  sufficiency  of 
the  deeds  and  their  lawful  execution  to  the  McEwens  is  concerned, 
from  all  the  heirs  of  David  Millspaugh  to  his  undivided  half  in- 
terest in  the  land  warrant  and  patent. 

The  undivided  half  interest  of  Christina  Lynn  in  the  land  warrant 
passes,  by  quit-claim  deed  of  May  26,  1856,  to  Thomas  C.  and 
Milton  McEwen,  and  is  set  up,  in  haecverba,  in  complaints.  (Bill, 
p.  3,  lines  15-30,  and  p.  4,  lines  1-26.) 

In  the  body  of  the  deed  the  language  is  : 

"This  indenture,  made  this  twenty-sixth  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-six :  Wit- 
nesseth,  that  I,  Christina  Lynn,  sister  and  heir  at  law  of  Henry 
Millspaugh,  deceased,  who  was  a  recruit  of  lieutenant  T.  W. 
Denton,  of  thirteenth  regiment  United  State  infantry,  war  of 
1812,  with  Great  Britain,  of  the  county  of  St.  Clair,  and  Slate  of 
Michigan,  party  of  the'  first  part,  in  consideration  of  the  sum  of 
forty-three  dollars  in  hand  paid  by  Milton  and  Thomas  C. 
McEwen,  of  the  county  of  Orange,  and  State  of  New  York,  party 
of  the  second  part,  the  receipt  of  which  is  hereby  acknowledged, 
do  hereby  release,  grant,  bargain  and  quit-claim  unto  said  party 
of  the  second  part,  their  heirs  and  assigns  forever,  all  her  right, 
title,  claim  and  interest  in  that  certain  tract  of  land  granted  by 
the  United  States  unto  David  Millspaugh  and  Christina  Linn, 
the  brother  and  sister  and  only  heirs  at  law  of  Henry  Millspaugh, 
deceased,  as  follows,  to- wit:  The  south-east  quarter  section 
numbered  fifteen,  (15)  in  township  numbered  thirty-seven,  (37) 
north  of  range  numbered  fourteen  (14)  east,  in  the  district  of 
lands  subject  to  sale  at  Chicago,  State  of  Illinois,  containing  one 
hundred  and  sixty  acres,  by  Letters  Patent  bearing  date  of 
November  twenty-third,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-nine,  and  founded  upon  Warrant  num- 
ber 27,495,  reference  being  made  to  said  patent  will  more  fully 
appear.  To  have  and  to  hold  the  said  premises  with  all  the  ap- 
purtenances thereunto  belonging,  or  in  anywise  appertaining,  to 
their  only  proper  use  and  behoof  of  said  parties  of  the  second 
part,  their  heirs  and  assigns  forever. 


15 

• 

"In  witness  whereof,  the  said  grantors  have  hereunto  set  our 
hands  an  i  se  ils  the  day  and  year  first  above  written." 

her 

"CARISTINA  x  LYNN,    [SEAL.] 

mark. 

"WILLIAM  LYNN.          [SEAL.] 
"Signed,  sealed  and  delivered  in  presence  of 
"MARY  A.  LYNN, 
SMITH." 


"STATE  OF  MICHIGAN, 
COUNTY  OF  ST.  CLAIR. 

"On  this  twenty-seventh  day  of  May,  A.  D.  1856,  before  nie,  a 
justice  of  the  peace  in  and  for  said  county  of  St.  Clair,  personally 
came  Christina  Lynn  and  William  i^ynn,  her  husband,  known  to 
me  to  be  the  persons  who  executed  the  foregoing  instrument,  and 
acknowledged  the  same  to  be  their  free  act  and  deed.  And  the 
said  Christina  Lynn  having  been  by  me  privately  examined, 
separate  and  apart  from  her  said  husband,  and  fully  understand- 
ing the  contents  of  the  foregoing  instrument,  acknowledged  that 
she  executed  said  deed  fr<  ely,  and  without  any  force  or  compul- 
sion from  her  said  husband,  or  from  any  one." 

OBED  SMITH, 
"Justice  of  the  Peace." 

This  deed  is  in  the  usual  form,  except  that  the  husband's  name 
does  not  appear  in  the  body  of  the  deed  :  but  he  signs  it,  and  it 
is  lawfully  acknowledged  by  both  husband  and  wife  in  the 
presence  of  two  witnesses,  and  one  of  the  same  name  as  the  wife. 
That  this  is  a  good  and  sufficient  deed,  as  to  its  form  and  execu- 
tion, we  have  no  doubt,  and  that  such  deeds  have  been  frequent- 
ly upheld  by  courts  of  law  and  equity. 

"It  was  once  thought  that  the  grantor  should  be  named,  as 
such,  in  the  deed.  But  this  does  not  seem  necessary,  if  the 
grantor  signs  it.  Thus,  where  a  deed  purports  to  be  that  of  a 
married  woman,  her  name  only  appearing  as  grantor,  but  it  was 
signed  by  her  and  her  husband,  who  acknowledged  it,  it  was  held 
to  be  a  good  grant  of  the  husband,  as  well  as  of  the  wife." 

3  WTashb.  R.  P.,  4th  ed  ,  p.  266,  Sec.  31. 


16 

Elliott  vs.  Sleeper,  2  N.  H.  525. 

Perkins,  Sec.  36,  Co.  Lit.,  6a,  Lord  d;  Seal's  case, 
Mod.  46. 

"It  is  sufficient  if  the  wife  execute  the  deed  in  proper  form, 
and  the  husband  assent  to  the  same  itt  irriting  upon  the  deed,  though 
he  do  not  join  in  the  execution." 

Ingoldsby  vs.  Juan,  12  Cal.  564. 

"In  New  York,  the  deed  of  a  married  woman  may  be  good, 
although  her  husband  do  not  join  with  her  in  making  it,  if  she 
is  examined  separate  and  apart,  and  acknowledges  the  same." 

Albany  Fire  Ins.  Co.  vs.  Bay,  (decided  in  1850,] 

4  Const.,  9  S.  C.,  Barb.  407. 
Williard  Heal  Est.  392. 
See  also,  4  Greenl.,  Cruise  Dig.,  18 — Note. 

2  Kent's  Com.  150-154. 

"The  statute  (of  Illinois)  has  not  required  that  the  name  of  the 
husband  or  wife  of  the  grantor  shall  appear  in  the  granting  clause, 
or  elsewhere  in  the  body  of  the  deed.  Unless  made  so  by  the 
statute,  it  is  not  imperative  it  shall  appear.  It  is  sufficient  for  a 
valid  relinquishrnent  of  horns  lead  that  it  is  done  in  conformity 
with  the  statute." 

Ill  111.  212.     (Sept.,  1884.) 
Deutzer  vs.  Walden,  30  Cal.  138. 
Armstrong  vs.  Stovel,  26  Miss.  275. 

"Where  persons  sign  a  bond,  they  are  bound  by  it,  though 
their  names  do  not  appear  in  its  body." 

Smith  vs  Crooker,  5  Mass.  5iO. 
Ahrend  vs.  Odiorne,  125  Mass.  50. 
Seath  vs.  Bush,  61  Pa.  St.  395. 
Scheed  vs.  Seibschultz,  57  Ind. 
Kursly  vs.  Schenberger,  5  Watts,  193. 

A   deed  will  be  construed  most  strongly  against  the  grantor. 

3  Washb.  E.,  p.  397,  and  citations. 
2  Blackston's  Com.  380. 


17 

Every  deed  must,  if  possible,  be  made  operative.  Cases  exist 
in  which  almost  every  formal  part  of  a  deed  has  been  dis- 
pensed with. 

Coke  on  Littleton,  7a. 

Bridge  vs.  Wellington,  1  Mass.  219. 

William  Lynn  had  only  an  estate  of  curtesy  in  this  land — it  be- 
longed to  his  wife — and  as  far  as  executing  a  release  to  the  same 
was  concerned,  it  would  be  analagous  to  the  release  of  the  dower 
interest  of  a  married  woman,  the  husband  not  being  subject  to 
a  separate  examination  by  the  magistrate  who  takes  the  acknowl- 
ment. 

A  married  woman,  by  "signing  the  deed,  she  joins  in  it,"  and 
having  done  this,  her  dower  is  barred,  if  she  takes  the  other  steps 
pointed  out  by  the  statute.  The  deed  as  to  dower  transfers  no 
title — it  only  extinguishes  a  contingent  right.  This  is  so  when 
her  name  as  grantor  does  not  appear  in  the  body  of  the  deed, 
nor  naming  her  or  her  dower  in  any  way  whatever.  If  properly 
examined,  as  the  statute  requires,  before  the  acknowledging  offi- 
cer, the  dower  is  barred. 

Johnson  vs.  Montgomery,  51  111.  185. 

In  the  beginning  of  a  deed  for  separate  real  estate  of  a  wife, 
where  the  parties  are  first  stated,  "A.  B."  in  her  own  right,  wife 
of  "C.  D.,"  was  named  in  the  clause  of  the  deed  as  the  party 
making  the  grant,  but  in  the  clause  releasing  homestead,  the 
husband  was  named  as  "the  party  of  the  first  part,"  and  so  in 
the  covenanting  and  attesting  clauses,  and  he  also  signed  and 
acknowledged  it  as  his  and  his  wife's  deed.  "Held,  that  even  if 
the  statute  of  1845  required  the  husband  to  join  in  the  granting 


18 

clause,  that  fact  was  sufficiently   shown  by  the   deed  taking  the 
whole  of  it  together." 

Miller  et  al.  vs.  Shaw  et  al.,  103  111.  277.  See  p.  291. 
Under  the  statute  of  1845,  a  married  woman  might  convey 
lands  by  joining  with  her-  husband  in  a  deed  therefor  properly 
acknowledgad  and  certified ;  but  her  acknowledgment  was  the  oper- 
ative act  to  pass  the  title  and  not  delivering  the  deed,  and  a  substan- 
tial compliance  with  the  statute  required. 

Hogan  vs.  Hogan,  89  111.  428. 

From  the  above  citations,  and  many  others  to  the  same  effect, 
which  could  be  produced,  it  appears  to  be  immaterial  whether  the 
name  of  the  husband  or  wife  appears  in  the  body  of  the  deed.  The 
operative  part  of  the  instrument,  to  pass  the  title,  is  the  signature. 
and  the  acknowledgment,  according  to  the  required  statutory  form, 

In  the  case  at  bar  there  can  be  no  question  but  that  botli  liu*lrnid 
and  wife  signed  and  sealed  the  deed  in  the  presence  of  two  sub- 
scribing witnesses,  and  they  both  acknowledged  it  —the  wife  being 
examined  separate  and  apart  from  her  husband,  in  full  and  com- 
plete accord,  in  every  particular,  with  the  requirements  of  the 
statute.  What  more  could  be  done  to  make  this  a  perfect  deed 
and  to  pass  the  title,  we  cannot  conceive. 

There  is  no  averment  of  fraud  or  imposition  practiced  upon 
grantors  in  procuring  their  signatures  and  seals,  nor  that  the 
grantors  were  legally  incompetent  to  make  such  a  deed. 

"A  deed  cannot  be  avoided  in  a  court  of  law  except  for  fraud 
in  its  execution,  or  imposition  practiced  upon  the  grantor  in  pro- 
curing his  signature  and  seal — a/n<m/  irJiirh  goes  to  the  question, 
whether  the  deed  ever  had  any  legal  existence.  The  law  does  not 
reach  the  cases  of  deeds  procured  by  undue  influence  over  the 
grantor,  if  he  be  of  legal  capacity.  The  only  relief  in  such  cases 
is  in  equity." 

3  Washb.  R.  P.,  281,  sec.  18. 

Truman  vs.  Lore,  14  Ohio  St.  155. 
Hartshorn  vs.  Day,  U.  S.  19;  How.  223. 


19 

In  order  to  overturn  a  certificate  of  acknowledgment,  a  clear 
case  of  fraud,  or  want  of  jurisdiction  in  the  office,  muat  be  made 
out.  The  facts  relied  upon  to  avoid  the  acknoAvledgment,  must 
be  pleaded. 

Marsh  vs.  Mitchell,  26  N.  J.  Eq.  497. 

A  mere  preponderance  of  fraud  will  nor  suffice ;  it  must  be 
clear,  strong  and  assuring. 

Hughes  vs.  Coleman,  10  Bushn.  248. 

The  uncontroverted  evidence  of  the  grantor  has  been  held  in- 
sufficient to  overcome  the  certificate. 

Lickmun  vs.  Harding,  65  111.  505. 
Graham  vs.  Anderson  et  al.,  42  111.,  514. 
Federal  Reporter,  vol.  18,  p.  368. 

Under  the  above  authorities  and  principles  of  both  law  and 
equity,  we  think  the  sufficiency  of  this  deed  in  form  and  execu- 
tion is  established  beyond  a  doubt,  and  that  under  it,  the  undi- 
vided half  interest  of  Christina  Lynn  in  the  land  warrant 
passed  to  the  McEwens  through  her  deed,  joined  by  her  husband, 
of  date  May  26,  1856. 

This  brings  the  title  of  the  whole  160  acres  into  the  McEwens, 
as  far  as  the  sufficiency  of  the  deeds  in  form  and  execution  is 
concerned,  and  must  stand,  we  think,  unless  fraud  on  the  part  of 
the  McEwens,  by  way  of  undue  influence  and  imposition,  over  the 
grantors  can  be  established.  All  subsequent  grantees  of  the 
McEwens  received  deeds  made  and  executed  as  the  law  requires, 
and  there  are  no  averments  in  complainant's  bill  of  their  insuffi- 
ciency, either  in  form  or  execution. 


20 

THE    QUESTION    OF 

Fraud,  in  this  case,  can  only  be  maintained,  if  at  all,  as  we 
have  already  shown,  on  the  ground  of  undue  influence  and  impo- 
sition over  the  prior  grantors  on  the  part  of  the  McEwens.  Under 
this  branch  of  the  case,  the  averments  of  the  bill  (p.  6,  lines 
1-40,  et  seq.)  are,  that  Thomas  C.  and  Milton  McEwen  were 
purchasing  land  warrants  and  locating  the  same,  and  obtaining 
patents  therefor  for  claimants  in  Orange  county,  New  York. 

That  in  1846,  an  agreement  was  made  with  David  Millspaugh 
and  Christina  Lynn,  heirs  at  law  of  Henry  Millspaugh,  to  obtain 
a  land  warrant,  locate  and  procure  a  patent  from  the  government, 
they,  the  McEwens,  paying  all  fees  to  the  government,  and  costs 
in  procuring  the  land  warrant  for  160  acres  of  land ;  and  for  their 
services  and  fees  and  costs,  and  expenses  paid  by  them,  the 
McEwens  were  to  have  one-half  of  the  land  covered  by  the  patent. 
They  are  charged  with  falsely  representing  to  David  Millspaugh 
and  Christina  Lynn,  that  fees  to  the  government  had  to  be  paid 
to  procure  such  warrant  and  patent  from  the  government ;  that 
said  David  and  Christina  were  simple,  unlearned  country  folk, 
farmers,  and  very  little  acquainted  with  business  transactions; 
that  Christina  could  not  write,  and  was  70  years  old,  and  David 
71  years  old;  and  both  infirm  in  mind  and  body,  and  that  neither 
of  them  had  the  slightest  acquaintance  with  the  laws  of  Congress, 
relating  to  military  bounty  lands,  or  the  rights  of  soldiers  or 
their  heirs  under  said  laws. 

The  above  is  the  substance  of  the  averments  as  to  the  agree- 
ment and  the  procuring  of  the  same  by  the  McEwens  from  David 
Millspaugh  and  Christina  Lynn,  for  procuring  the  land  warrant 
and  the  patent  to  the  land  involved  in  this  case. 


21 

In  this  there  are  no  traces  of  fraud  that  can  in  any  way  affect 
this  title.  The  whole  transaction  was  natural  and  legal.  The 
McEweus,  on  the  averments  of  the  bill,  made  no  serious  mis- 
representations, only  their  opinions,  and  were  paying  fully  all 
that  such  interests  at  that  time  were  worth;  they  paid  their 
money  for  all  necessary  costs,  fees  and  expenses,  and  there  were 
then  and  now  considerable  sums  of  legetimate  expenses  attend- 
ing the  procuring  of  land  warrants,  making  proof  of  the  claim 
of  the  soldier  and  of  heirs,  and  in  locating  the  land,  and  in  procur- 
ing the  patent ;  and  they  took  all  the  risk  of  any  failures  that  might 
occur.  The  bill  admits  that  the  McEwens  were  to  have  one- 
half  of  the  land  covered  by  the  patent  for  their  expenses  paid  in 
procuring  it.  The  cash  expenses  required  at  that  time  to  be 
paid  by  the  McEwens,  and  which  they  did  actually  pay  in 
procuring  this  patent,  according  to  the  averments  of  this  bill, 
would  have  purchased  160  acres  of  government  land,  and  more 

t3O. 

Suppose  David  Millspaugh  and  Christina  Lynn  had  been 
young — say  like  the  complainant,  37  years  of  age,  and  lawyers 
or  judges,  sound  of  mind  and  in  body,  instead  of  simple  farmers, 
and  thoroughly  acquainted  with  all  the  laws  of  Congress  and  the 
rights  of  soldiers  and  their  heirs  under  said  laws,  would  it  liare 
made  any  difference!-  Would  they  not  at  that  time,  and  even  now, 
make  similar  agreements  ?  and  have  not  such  agreements  been 
held  good  time  and  again  by  all  courts  ? 

The  rule  lai'l  down  by  Story  is  as  follows :  "Still,  however, 
there  may  be  such  an  unconscionableness  or  inadequacy  in  M  1  tar- 
gain,  as  to  demonstrate  some  (/ross  imposition  or  undue  influence  ; 
and  in  such  cases  courts  of  equity  ought  to  interfere,  upon  the 
satisfactory  ground  of  fraud.  But  then  such  unconscionableness 
or  such  inadequacy  should  be  made  out  as  would  (to  use  an  ex- 
pressive phrase)  shock  the,  conscience  and  amount  in  itself  to  con- 
clusire  and  decixirc  eridi'iice  of  fraud." 


22 

Story's  Equi-Jarisprudence — Vol.  1,  12th  eel  p.  241,  Sec.  2.6, 
and  citations. 

There  is  nothing  whatever  in  the  action  of  the  McEwens  in 
procuring  the  agreement  from  the  Millspaughs  that  "shocks  the 
conscience ,  and  that  amounts  in  itself  to  conclusive  end  decisive  evi- 
dence of  fraud." 

On  a  fair  viewing  of  the  circumstances  under  which  this 
agreement  was  made  by  the  McEwens  and  David  Millspaugh  and 
Christina  Lynn,  there  does  not  appear  any  fraud  or  misrepre- 
sentations, or  imposition  or  undue  influence  on  the  part  of  the 
McEwens,  that  could  possibly  induce  any  court  to  annul  the 
agreement,  even  in  an  action  between  the  parties  themselves, 
much  less  to  give  them  any  consideration  whatever  in  such  a 
proceeding  as  the  present  bill  of  complaint. 

The  complainant  in  the  bill  (p.  7,  et  seq.)  further  avers  that 
the  McEwens,  in  pursuance  of  the  agreement  made  in  1846,  with 
David  Millspaugh  and  Christina  Lynn,  obtained  the  land  warrant 
in  June  17,  1847,  located  it  on  lands  subject  to  such  entry  in  Cook 
County,  Illinois,  August  30,  1849,  and  procured  a  patent  from 
the  government  November,  23,  1849,  in  the  names  of  David  Mill- 
spuugh  and  Christina  Lynn,  jointly,  as  the  sole  heirs  of  Henry 
Millspaugh;  that  they  did  not  communicate  this  fact  to  David 
Millspaugh,  who  died  July,  1, 1849,  in  his  lifetime,  nor  to  Christina 
Lynn,  until  in  1856 ;  but  obtained  the  said  land  warrant  and 
patent  from  the  land  commissioner  of  the  government,  and  kept 
the  same  in  their  possession. 

That  the  McEwens  had  employed  a  real  estate  lirni  in  Chicago 
as  their  agents  in  the  maHer  of  locating  the  land  and  obta;ning 
the  patent  and  in  the  payment  of  taxes  on  the  land  after  it  was 


23 

located;  that  these  agents  delivered  the  patent  to  the  Me E wens 
in  January,  1850,  wit  bout  making  known  to  Christina  Lynn  or 
the  executor  of  David  Millspaugh's  Will,  or  any  of  his  heirs,  the 
fact  that  the  land  had  been  located  and  the  patent  issued,  though 
their  names  and  addresses  were  well  known. 

That  the  land  was  assessed  in  the  name  of  the  McEwens  and 
taxes  paid  by  them  ;  that  in  1849  and  1850  a  colony  located  near 
the  land  and  established  a  flourishing  village,  and  that  in  1852 
the  Michigan  Central  and  Illinois  Central  Eailroads,  coming 
from  the  east  and  south,  built  their  roads  through  this  land,  and 
formed  a  junction  within  one  half  mile  south  of  this  quarter  sec- 
tion, which  it  was  supposed  would  become  a  place  of  importance, 
the  Illinois  Central  Railroad  Company  reserving  from  sale  a 
quarter  section  of  land  adjoining  the  land  involved  in  the  bill. 

That  in  May,  1852,  the  Illinois  Central  Railroad  Company  con- 
demned about  12  acres  of  this  quarter  section  in  controversy  for 
right  of  way,  and  the  McEwens  were  parties  defendant  to  the 
suit,  and  that  damages  were  awarded  to  the  legal  owners. 

That  Thomas  C.  McEwen  and  Milton  McEwen,  in  September, 
1855,  personally  examined  the  land  and  reported  it  first  rate  land, 
and  worth  s20  to  s-25  per  acre. 

That  in  May,  1850,  Thomas  C.  McEwen  first  made  known  the 
existence  of  the  patent  to  Archibald  Millspaugh,  executor  and 
devisee  of  the  Will  of  David  Millspaugh,  and  that  under  the 
agreement  made  with  David  Millspaugh  and  Christina  Lynn, 
they,  the  McEwens,  were  the  owners  of  at  least  one  half  of  the 
land  ;  that  they  had  p^id  all  faxes  for  seven  years,  from  1849  to 
1855,  inclusive,  and  had,  under  the  laws  of  Illinois,  acquired  full 
legal  right  to  all  of  the  laud,  and  that  there  still  remained  in  the 
heirs  of  David  Millspaugh  only  a  nominal  interest  in  said  land. 


24 

That  they,  the  McEwens  desired  a  quit-claim  deed  for  the  pur- 
pose of  removing  an  apparent  cloud  from  their  title,  in  order 
that  the  record  might  appear  clear;  that  said  land  was  all  a 
swamp,  incapable  of  cultivation,  and  of  trifling  value,  and  not 
likely  to  improve. 

That  said  McEwens  represented  that  they  had  paid  for  costs, 
fees  and  expenses,  to  the  government  in  getting  the  warrant  and 
locating  it,  and  getting  patent,  money  exceeding  $100,  and  a  large 
sum  for  taxes. 

That  in  May,  1856,  Archibald  Millspangh  and  wife,  and  Will- 
iam S.  Millspaugh  and  wife,  executed  to  the  McEwens  quit-claim 
deeds  to  an  undivided  one-sixth  part,  or  an  heir's  portion,  for 
the  sum  of  $10,  and  tbat  in  the  same  year  the  other  heirs  exe- 
cuted similar  deeds  for  the  same  consideration. 

That  in  September,  1856,  the  McEwens  took  the  condemnation 
money  and  used  if",  which  had   been  paid  into  court  by  the  Illi- 
nois Central  Eailroad  Company,  in  the  condemnation  p:<. 
for  their  right  of  way  in  1852. 

The  above  aie  the  substantial  averments  in  the  bill,  or  charges 
of  misrepresentations,  concealments,  and  fraud  on  the  part  of 
'the  McEwens  in  procuring  the  quit-claim  deeds  from  tbe  heirs, 
and  through  which  the  title  passes  to  their  grantees,  and  on 
which  this  court  is  asked  to  cancel  and  set  aside,  on  the  ground 
of  fraud,  all  the  deeds. 

We  have  given  these  averments  in  substance,  for  purpose  of 
condensation  and  reply,  in  the  order  in  which  they  appeal- 
above. 

The  McEwens  evidently  faithfully  carried  out  their  part  of  the 
agreement  of  1846,  and  at  once  proceeded  to  pay  out  their 
money  and  procure  the  land  warrant,  which  was  obtained  June 


•25 

17,  1847 — probably  as  soon  as  the  proof  could  be  made  and  pa- 
pers prepared  and  presented  in  those  days — and  the  land  located 
August  30,  1849,  and  patent  issued  November  23,  1840.  The 
patent  was  issued  to  D  tvid  Millspaugh  and  Christina  Lynn, 
jointly ;  but  in  meeting  the  averments  of  the  bill  as  to  the  ques- 
tion of  possession  of  the  patent  and  the  concealment  of  the  same 
from  the  heirs  until  1856,  it  must  be  remembered  that  under  the 
terms  of  the  agreement  which  the  bill  admits,  the  McEwens  were 
to  pay  all  the  costs  and  have  half  of  the  land.  iritat  more  there 
was  in  the  agreement  not  stated  in  the  bill,  for  the  purposes  of  this 
demurrer,  we  c;innot  inquire,  for  we  must  meet  the  bill  as  it 
stands  ;  but  in  a  proceeding  where  fraud  is  charged,  we  are  per- 
mitted io  consider  all  the  circumstances.  From  the  circum- 
stances, it  is  almost  certain  that  the  McEwens  must  have  had 
full  power  to  act  for  the  other  parties  to  the  contract  in  the  pro- 
curing of  this  warrant,  locating  it,  and  getting  the  patent,  and 
for  aught  that  appears  in  the  bill,  selling  it  on  such  terms  as  tbey 
pleased.  Moreover,  the  Land  Commissioner  delivered  the 
patent  to  the  McEwens  or  their  agents,  and  was  obliged  by  law 
to  notify  the  applicant,  which  would  not  have  been  done  by  that 
official  unless  they  had  some  authority  to  receive  it.  Then, 
Mg'in,  the  McEwens  had  the  equitable  title  to  one-half  of  the 
bind  by  the  agreement,  and  could  control  that  as  they  pleased, 
while  the  legai  title  rested  in  David  Millspaugh,  or  his  heirs,  and 
Christina  Lynn. 

In  the  case  of  Seymour  vs.  Freer,  U.  S.,  8  Wall.  214,  the  Court 
say :  "They  had  a  joint  interest  in  the  property.  Seymour  held 
the  legal  ti'le,  but  the  rights  of  Priee  (in  this  case  the  McEwen's) 
ivere  as  i\did  in  equity  as  those  of  Seymour  were  at  law." 


26 

Price's  position  in  the  above  case,  as  far  as  title  is  concerned, 
is  identical  with  tint  of  the  McEwens  in  the  case  at  bar. 

There  seems  to  be,  even  from  the  ful  est  averments  of  the  bill, 
no  effort  whatever  to  conceal  the  fact  that  a  warrant  had  been 
issued  and  located,  and  a  patent  received  from  the  government. 
The  simple  fact  that  they  kept  possession  of  it  when  they  owned 
one-half  of  it,  is  certainly  no  proof  or  evidence  of  a  desire  to  con- 
ceal it.  The  McEwens  certainly  had  as  much  right  to  its  pos- 
session as  all  the  heirs  together  had,  and  having  received  it,  and 
knowing  it  was  then  of  little  value,  and  Iriving  paid  out  in  get- 
ting it  probably  all  it  was  worth,  they  held  it  and  paid  the  taxes, 
doubtless  hoping  some  time  to  get  back  their  money. 

Then,  again,  David  Millspaugh  died  in  July,  1849,  before  the 
warrant  was  located,  and  being  notified,  undoubtedly,  as  the  law 
required,  that  it  had  been  issued,  there  could  have  been  no  effort 
to  conceal  the  fact  from  him,  for  he  could  write,  or,  at  least,  that 
is  the  inference  from  the  averments,  and  could  easily  have  written 
or  ascertained  all  about  it.     His  postmaster,  and  the  notice  of  its 
being  issued,  would  have  informed  him  where  to  write,  or  the 
lawyer  that  drew  his  Will.     There  was  no  fraud  practiced  upon 
Archibald  Millspaugh,  nor  effort  to  conceal  the  facts.     He  closed 
up  his  father's  estite  under  ths  Will  in  which  he  wa^  heir  to  all 
the  real  estate,  and  executor,  in  1851,  in  Yates  county,  New  York. 
He  then  moved  to  Michigan  and  resided  there  until  his  death,  in 
1871,  within  two  hundred  miles  of  Chicago,  or  where  the  land  is 
located  at  Pullman.     The  issuing  of  the  land  warrant  and  patent, 
and  the  locating  of  the  same,  was  a  matter  of  public  record,  and 
open  to  the  inspection  of  all.     There  were  post  offices  and  rail- 
roads from  1846  to  1856,  when  the  supposed  fraudulent  machina- 
tions of  the  McEwens  were  going  on,  and  Archibald  Millspaugh 


27 

could  easily  have  ascertained  all  that  had  been  done  by  the 
McEwens.  It  wiir  not  do  to  aver  fith<it  he  had  no  means  of  infor- 
mation." He  had  the  same  facilities  for  traveling  and  using  the 
mails  as  the  McEwens  had.  He  was,  moreover,  a  man  of  at 
least  some  means— heir  to  real  estate,  and  chosen  above  other 
heirs  as  executor  of  his  father's  estate.  Yet  the  complainant,  in 
order  to  make  a  seeming  case  (bill,  p.  9,  line  8,  et  seq.\,  avers  that 
his  o/cn  father,  Archibald  Millspaugh,  in  1856  (only  fire  years 
after  settling  ]tis  father's  estate  in  Yules  county,  Xew  York),  "being 
yet  wholly  ignorant  of  the  existence  of  the  aforesaid  patent,  and 
of  his  rights  as  aforesaid  to  the  land  covered  thereby,  and  the 
((ff'airs  of  his  father 's  estate  and  the  jnorlsions  of  his  Wdl,  wherein/ 
he  teas  himself  constituted  residuary  derisee,  haviiitf  passed  out  of 
his  mind  and  been  forgotten  by  liiin,  was  approached  by  said  Thomas 
C.  McEwen." 

Courts  can  not  protect  against  such  supposed  ignorance  and 
forgetfulness  of  an  executor  of  a  Will,  who  had  within  ficc  years 
closed  ir  up,  and  then  on  the  approach  of  Thomas  C.  McLwen' 
forgets  mid  allows  to  jmss  out  of  his  inind  the  affn'tra  of  his  father's 
estate, 'the provisions  ofliis  Will,  and  thai  he  was  residuary  devisee. 

There  is  certainly  no  fraud  in  the  conduct  of  the  McEwens 
in  the  employment  of  agents  in  Chicago  to  attend  to  this  or  any 
other  business  they  might  have  had  in  that  city  or  vicinity,  and, 
if  there  was  any  misrepresentations  or  concealments,  it  must 
have  been  when  the  McEwens  procured  the  quit-claim  deed  from 
Archibald  and  Win.  S.  Millspaugh  and  their  wives,  in  May,  1856. 
In  reference  to  this,  we  know  of  no  law  by  which  the  vendee  is 
required  to  fix  the  value  of  the  vendor's  property,  nor  to  i  nform 
him  what  improvements  have  been  made  around  his  property, 
nor  to  furnish  him  with  brains  and  ordinary  business  activity 


28 

and  capacity.  These  are  matters  that  hje  must  ascertain  and 
obtain  for  himself.  Even  giving  the  complainant  the  full  benefit  of 
all  his  extraordinary  averments  about  the  ignorance  and  forgetful- 
ness  of  his  father,  when  the  McEwens  did  state,  in  1856,  that  the 
warrant  had  been  obtained  and  located,  and  the  patent  issued, 
Archibald  Millspaugh  was  not  obliged  to  sell.  Their  statements 
were  mere  opinions.  He  was  then  put  upon  notice  of  these  aver- 
ments, as  to  concealments,  whether  they  were  true,  and  ordinarily 
would  have  inquired  at  once  where  the  land  was,  and  would  have 
ascertained  its  value  before  selling.  Moreover,  it  was  not  Archibald 
Millspaugh  alone  that  the  McEwens  dealt  with,  but  his  brother, 
Wm.  S.  and  their  wives,  four  persons,  all  interested  in  this  prop- 
erty, and  living  within  200  miles  of  it,  six  hours  ride,  with  full 
notice  at  last,  that  as  heirs  to  the  land  warrant,  they  were  en- 
titled to  an  heirs'  portion.  With  this  notice,  and  probably  a  state- 
ment as  to  where  it  lay,  as  it  is  fully  described  in  the  deed,  or  at 
least  all  the'f  acts  were  within  their  reach,  as  to  its  value  and  locu- 
tion, and  yet  they  make  the  quit-claim  deed.  As  to  the  aver- 
ments, that  the  McEwens  claimed  to  have  paid  the  taxes  for  over 
seven  years,  from  1849  to  1856,  and  being  entitled  by  the  agree- 
ment to  one-half  of  the  land,  and  to  the  other  by  tax  title,  this 
may  have  all  been  true,  and  if  there  was  any  thing  fraudulent 
in  it,  then  was  the  time  to  have  had  it  corrected,  as  the 
legal  paper  title  was  still  in  the  heirs.  It  is  probable,  that 
the  McEwens  had  to  pay  taxes  in  order  to  protect  their  interest 
in  the  land,  as  a  matter  of  ordinary  business  prudence,  and  not 
with  any  intent  to  claim  it  under  a  tax  title,  until  1852,  if  at  all. 
There  would  seem  to  be  no  motive  to  conceal  any  facts  in  regard  to 
the  agreement,  the  procuring  the  Land  Warrant  and  locating  the 
same,  as  the  land  was  not  worth  enough,  according  to  the 
averments  of  the  bill,  to  make  it  an  object.  Then  all  the  heirs  of 


29 

David  Millspaugh  and  Christina  Lynn,  knew  that  their  uncle, 
Henry  Millspaugh,  was  a  soldier  in  the  war  of  1812,  and 
must  have  known  that  he  was  entitled  to  a  land  warrant  for  160 
acres.  Christina  Lynn  certainly  knew  that  it  was  obtained  and 
located,  and  patent  issued  in  1856,  and  was  undoubtedly  notified 
of  the  fact  when  it  was  issued  by  the  commissioners  who  issued 
it,  and  she  knew  of  the  existence  of  the  agreement;  and  undoubt- 
edly her  husband  must  h-ive  known  the  same  fact.  At  any  rate 
they  ought  have  known  these  facts,  and  were  put  upon  notice 
when  the  McEwens  procured  of  them  their  quit-claim  deed  in 
1856,  and  were  in  no  sense  compelled  to  make  the  deed.  In  fact 
her  acknowledgment  to  the  justice  is,  "and  the  said  Christina 
Lynn  having  been  by  me  privately  examined,  separate  and  apart 
from  her  said  husband,  and  fully  understanding  the  contents  of 
the  foregoing  instrument,  acknowledged  that  she  executed  said 
deed  freely,  and  without  any  force  or  compulsion  from  her  said 
husband,  or  from  any  one. 

The  averments  of  the  bill,  (p.  11,  line  38,  et  seq.)  as  to  the  in- 
terest of  the  claimant,  Gilbert  D.  Millspaugh,  son  of  Archibald 
Millspaugh,  they  state  that  he  was  eight  years  old  in  1856,  and  that 
would  now  make  him  37  years  of  age — in  the  very  prime  of  life — 
and  of  age  for  16  years.  If  he  has  any  rights  whatever,  and  has  any 
right  now  to  assert  them,  they  are  based  upon  the  averred  im- 
position and  undue  influence  of  the  McEwens  in  procuring  the 
quit-claim  deed  from  Archibald  Millspaugh  and  wife  in  May, 
1856. 

We  deny  that  any  of  these  heirs  ever  had,  according  to  the 
averments  of  the  bill,  or  otherwise,  any  grounds  of  complaint 
against  the  acts  of  the  McEwens,  that  any  court  of  equity  could  take 
cognizance  of,  and  if  they  ever  did,  they  slept  away  their  rights 


30 

and  the  opportunity  to  assert  them ;  and  that  this  complainant 
cannot,  certainly,  revive  their  supposed  rights  and  interests  after 
he  has  been  of  age  16  years,  and  after  the  McEwens  have  had 
undisturbed  and  undisputed,  peaceable  possession  of  these  lands, 
and  paid  taxes  for  30  years,  from  1850  to  1880,  and  their  grantees 
for  5  years,  and  until  the  present  time.  It  is  not  the  fault  of  the 
McEwens  that  there  were  no  memoranda  or  papers  of  his  father's 
referring  to  this  transaction  now  to  be  found,  nor  that  he  did  not 
discover  his  supposed  rights  until  last  year,  1884,  as  averred  by  the 
bill.  The  deeds  from  the  heirs  to  the  McEwens  in  1856,  fully 
describing  the  land,  were  publicly  made,  executed  in  due  form,  in 
St.  Glair  county,  Michigan,  the  home  of  the  complainant,  and  by 
his  father  and  mother,  uncle  and  aunt.  They  were  of  record,  and 
in  these  days  of  easy  communication  and  travel,  the  averments  of 
the  bill  are  not  sufficient,  at  this  late  day,  to  protect,  by  a  Court 
of  Chancery,  any  supposed  rights  he  might  have  had. 

Publicly,  the  McEwens  were  in  court,  in  1852,  in  the  land  con- 
demnation proceedings  of  the  111.  Cent.  E.  E.  Co.,  and  there 
recognized  as  defendants.  Their  acts  in  getting  the  deeds  before 
a  public  official,  recording  the  same,  publicly  obtaining  the  land 
warrant  and  locating  the  same,  and  appearing  in  court  in  a  pub- 
lic proceeding,  would  indicate  that  they  were  not  very  successful, 
if  they  were  intending  or  striving  to  conceal  any  part  of  their 
acts  in  this  whole  matter.  The  averment  is  that  they,  in  1856, 
after  obtaining  the  quit-claim  deeds,  obtained  the  condemnation 
money  paid  into  court  in  that  proceeding  in  1852,  and  appropri- 
ated it  to  their  own  use.  This  they  had  a  right  to  do,  after  pur- 
chasing the  land  and  being  parties  to  the  suit.  Half  of  it  was 
theirs  by  the  agreement,  at  least,  and  was  too  trifling  a  sum  to 
have  any  influence  on  the  question  of  fraud  and  concealment. 


31 

According  to  the  averments  of  the  bill,  (p.  10,  lines  9-12)  the 
whole  amount  was  less  than  $53.00.  As  we  view  this  question, 
there  was  no  such  concealment,  misrepresentation  or  fraud,  if 
anything  of  either,  to  amount  to  positive  fraud,  that  would  shock 
the  conscience,  and  be  conclusive  of  its  use.  That  if  there  was 
anything  in  the  acts  of  the  McEwens  that  could  be  construed  as 
concealment,  imposition  or  undue  influence,  it  would  best  come 
under  the  head  of  constructive  fraud,  in  the  relations  of  trust  and 
agency,  and  will  be  discussed  under  that  head. 

INADEQUACY   OF   PRICE. 

The  substantial  averments  of  the  bill  are,  that  the  McEwens 
paid  for  the  interest  of  Christina  Lynn  and  her  husband,  as  stated 
in  their  deed,  $43.00 ;  that  to  Archibald  and  William  S.  Millspaugh 
they  paid  $10.00  for  an  undivided  heirs'  portion,  and  the  said  sum 
being  precisely  the  same  as  was  paid  by  the  said  McEwens  to 
each  one  of  the  other  heirs  at  law  of  the  said  David  Millspaugh. 
The  bill  avers  that  the  McEwens  had  paid  not  to  exceed  $53.00 
for  taxes ;  That  in  1855  and  1856,  the  said  land  was  valued  for 
taxation  at  S960 ;  that  the  McEwens  reported  to  their  agents,  in 
September,  1855,  that  said  lands  were  first-rate  lands,  and  worth 
at  least  $20  to  $25  per  acre ;  that  in  1850  and  1856,  the  mini- 
mum price  fixed  by  law  for  the  sale  of  public  lands  was  $1.25  per 
acre  ;  that  by  the  act  of  Congress,  approved  September  20,  1850, 
granting  certain  of  the  public  lands  to  the  State  of  Illinois,  to  aid 
in  the  construction  of  the  Illinois  Central  Railroad,  the  price  of 
all  public  lands  lying  within  six  miles  of  the  route  of  said  road 
was  raised  to  $2.50  per  acre  ;  that  in  1850,  the  valuation  for  tax- 
ation of  this  quarter  section  was  8240;  in  1851,  $320;  in  1852, 
$400;  in  1853,  $800;  in  1854,  $800;  in  1855,  $960;  in  1856, 


32 

That  in  1880,  one  Beach  purchased  an  adjoining  tract  of 
land,  worth  no  more,  if  as  much,  as  the  quarter  section  in  contro- 
versy, for  $500  per  acre,  while  the  said  Pullman  paid  the  Mc- 
Ewens  only  about  $312.50  per  acre. 

"Mere  inadequacy  of  price,  or  any  other  irregularity  in  the  bar- 
gain, is  not,  however,  to  be  understood  as  constituting,  per  se,  a 
ground  to  avoid  a  bargain  in  equity.  For  courts  of  equity  as  well 
as  courts  of  law  act  upon  the  ground  that  every  person  who  is 
not,  from  his  peculiar  condition  or  circumstances,  under  disability, 
is  entitled  to  dispose  of  his  property  in  such  manner,  and  upon 
such  terms,  as  he  chooses ;  and  whether  his  bargains  are  wise 
and  discreet,  or  profitable  or  unprofitable,  or  otherwise,  are  con- 
siderations not  for  courts  of  justice  but  for  the  party  himself  to 
deliberate  upon." 

1  Story's  Eq.  Juris.   241. 

I  Dean's  Eq.  Rep.  651. 

II  Wheat.  124. 

"Where  no  fiduciary  relations  exist  between  the  parties  dealing 
for  the  purchase  of  an  estate,  mere  inadequacy  of  consideration 
or  irregularity  in  the  statement  of  it  in  the  conveyance,  is  not 
sufficient  to  impeach  the  contract,  so  as  to  induce  a  court  of 
equity  to  set  it  aside. 


"Still,  however,  there  may  be  such  an  unconscionablen'ess  or 
inadequacy  in  a  bargain,  as  to  demonstrate  some  gross  imposi- 
tion, or  some  undue  influence  ;  and  in  such  cases  courts  of  equity 
ought  to  interfere,  upon  the  satis  actory  ground  of  fraud.  But 
then,  such  unconscionableuess  or  inadequacy  should  be  made 
out  as  would  (to  use  an  expressive  phrase)  shock  the  conscience, 
and  amount  in  itself  to  conclusive  and  decided  evidence  of 
fraud." 

1  Story's  Eq.  Juris.  240,  241,  sec.  245  and  246. 

"Yet,  persons  of  full  age  are  not  allowed,  in  point  of  law,  to 
object  to  their  agreement  as  being  injurious,  unless  the  injury  be 
excessive, — a  rule  wisely  established  for  the  security  and  liberty 
of  commerce,  which  requires  that  a  person  shall  not  be  easily 
permitted  to  defeat  his  agreements." 

Ibid.,  243. 


33 

"Courts  of  equity  will  not  relieve  in  all  cases,  even  of 
very  gross  inadequacy,  attended  with  circumstances  which  might 
otherwise  induce  them  to  act,  if  the  parties  cannot  be  placed  in 
statu  quo." 

Ibid.  241,  sec.  250. 

Perly  vs.  Catlln,  31  111.  533. 

The  inadequacy  of  price  must  be  so  great  as  to  afford  a  strong 
presumption  of  fraud. 

Butler  vs.  Haskell,  4  Desaus,  651. 
Udall  vs.  Kennedy,  3  Cow.  590. 

Or  must  be  coupled  with  some  irregularity  of  the  parties. 

George  vs.  Richardson,  Gilmer,  230. 

In  the  purchase  of  a  debt  of  $260,000  in  certain  promissory 
notes  secured  by  mortgage  for  the  sum  of  $600,  at  a  sheriff's 
sale,  it  was  held  not  necessarily  fraudulent  and  void,  for  inade- 
quacy of  price.- 

Erwin  vs.  Parham,  U.  S.,  12  How.  197,  and  citations. 

It  has  been  held  that  inadequacy  of  price  of  a  reversionary 
interest,  not  so  great  as  to  shock  the  moral  sense,  was  not  cause 
for  setting  aside  the  sale  where  there  was  no  fraud. 
Mayo  vs.  Carrington,  19  Gratt.,  Va.  74. 

So  where  property,  under  a  trust  deed,  was  sold  for  about  two- 
thirds  of  its  value. 

Weld  vs.  Rees,  48  111.  428. 

Until  fraud  does  appear,  the  parties  must  be  left  to  their  rtghts, 
as  settled  and  fixed  by  their  contracts,  legally  made.  Equity 
will  not  interfere.  Ibid.  437. 

In  view  of  the  above  well  established  principles  of  equity  on 
this  subject,  and  the  citations  already  made,  we  do  not  think 
that  there  was  any  inadequacy  of  price  that  would  justify 


34 

a  court  of  equity  in  interfering  to  cancel  the  deeds  from 
the  Millspaugh  heirs  to  the  McEwens,  had  a  bill  been  filed 
immediately  after  the  deeds  were  executed.  To  have  suc- 
ceeded even  then,  the  complainants  would  have  had  to 
show  fraud  that  would  shock  the  moral  sense,  to  have  made  any 
supposed  inadequacy  of  price  of  avail.  To  make  it  available,  it 
must  be  shown  that  the  parties  were  unequal,  or  advantage  taken 
of  the  distress  of  the  vendor ;  or,  that  they  were  young  or 
ignorant,  or  imbeciles.  None  of  these  conditions  existed  in  the  case 
at  bar.  The  vendors  were  all  matured  men  and  women,  fully 
capable  to  attend  to  their  own  property,  and  act  as  executor,  one 
at  least,  of  his  father's  estate.  They  were,  or  might  have  been, 
if  they  had  sought  the  information,  as  well  posted  in  reference  to 
the  value  of  this  land  as  the  McEwens  were.  There  was, 
we  think,  no  fiduciary  relation  existing  between  the  heirs 
who  made  the  deeds,  and  the  McEwens,  at  the  time  the 
deeds  were  made  in  May,  1856.  For  that  relation,  if  any 
ever  existed  between  them,  terminated  when  the  McEwens 
informed  the  heirs  that,  according  to  the  the  agreement 
they  had  procured  the  land  warrant,  located  it,  and  obtained 
the  patent  therefor.  This  must  have  been  before  the  execution 
of  the  deeds  of  May,  1856,  to  the  McEwens.  This  announcement, 
therefore,  ended  any  relations  of  a  fiduciary  character,  or  of 
principal  and  agent,  or  of  partnership  relations,  if  any  such  ever 
existed  under  the  agreement.  The  contract  or  agreement  on  the 
part  of  the  McEwens  had  been  fully  executed,  and  their  work 
done,  and  they  were  reporting  to  the  heirs  and  ready  to  purchase 
the  part  of  the  land  belonging  to  the  heirs,  if  disposed  to  sell, 
and  if  not,  to  take  deeds  for  their  undivided  half  of  ths  land  be- 
longing to  them  under  the  agreement. 


35 

The  parties,  therefore,  stood  upon  equal  terms  and  footing  to 
buy  or  sell  their  interests  in  these  lands,  the  same  as  if  they  had 
not  had  any  relations  with  each  other  under  the  agreement.  The 
Millspaughs  were  in  no  sense  compelled  to  sell  unless  they  chose 
to  do  so,  nor  were  the  McEwens  compelled  to  buy  the  land. 

As  far  as  the  law  and  equity  in  the  matter  was  concerned,  each 
party  was  as  free  to  buy  or  sell  as  if  they  had  never  met  or  had 
any  relations  together  in  reference  to  this  land.  If  there  was  any 
fraud  on  the  part  of  the  McEwens,  in  reference  to  their  obtaining 
the  land  warrant  and  locating  the  same  and  getting  the  patent, 
it  must  have  been  in  the  supposed  concealment  of  these  facts 
from  the  Millspaughs.  There  may  have  been  good  and  sufficient 
reasons  why  they  kept  possession  of  the  land  warrant  and  patent 
from  1849  to  1856,  with  no  possible  taint  of  fraud  attached  thereto, 
and  dealing  with  the  averments  of  the  bill,  its  statements  must 
bs  accepted  on  demurrer.  But  whether  there  was,  or  no,  any 
fraudulent  concealments  or  other  acts  of  the  McEwens  up  to  the 
date  of  the  deeds  in  1856,  such  fraudulent  acts  were  all  condoned 
by  the  new  contracts  made  in  the  deeds. 

If  the  party  defrauded  enters   into  a  new  contract  with  full 
knowledge  of  the  fraud,  this  condones  it. 
Dads  vs.  Henry,  4  W.  Va.  571. 

The  fraud  of  the  McEwens,  according  to  the  averments  of  the 
bill,  lay  in  concealing  the  facts  of  where  the  land  was,  its  value, 
and  that  a  warrant  had  been  obtained  and  located,  and  patent 
issued.  The  gist  of  these  charges  is  the  concealment  that  the  pat- 
ent had  been  obtained  and  the  land  located.  When  that  fact  was 
disclosed  to  the  Millspaughs,  it  was  their  duty  to  have  ascertained 
the  value  of  the  land,  knowing  where  it  was,  the  supposed  fraud 
of  concealment  being  fully  known  to  the  Millspaughs  when  the 


36 

deeds  were  executed  in  1856.  The  making  of  them  on  the  part 
of  the  Millspaughs,  was  a  condonation  of  any  supposed  fraud 
prior  thereto.  This  supposed  fraud  of  concealment  being,  neces- 
sarily, from  the  nature  of  the  case,  disclosed  before  the  deeds 
were  executed,  such  fraud  cannot  be  made  ground  of  objection, 
or  interference  in  equity. 

Whiting  vs.  Hill,  23  Mich.  399. 

The  representations  and  statements  of  the  McEwens  as  to  the 
value  of  the  land,  and  as  to  their  ownership  of  the  whole  land  by 
virtue  of  having  paid  the  taxes  for  over  seven  years,  have  no 
bearing  on  the  case  (1  Story's  Eq.,  Sec.  193)  and  it. matters  not 
whether  they  were  true  or  false,  they  ice  re  only  the  opinions  of  the 
McEicens,  and  were  not  at  all  binding  on  the  Millspaughs,  all 
supposed  fiduciary  relations  or  those  of  trustee,  if  they  ever  ex- 
isted, having  expired  when  the  McEwens  announced  that  they 
had  obtained  the  warrant  and  procured  the  patent. 

On  this  point  we  quote  from  Douglass  vs.  Littler  et  al.,  58  Ills. 
348: 

"There  was  no  necessity  of  making  the  deed  at  once,  and  by  tak- 
ing a  little  time  for  examination  and  inquiry,  the  defects  in  the 
tax-title  might  have  been  discovered  before  the  making  of  the 
deed.  Littler  made  no  misstatement  of  any  matter  of  fact ;  he 
said  his  tax-title  was  good,  but  made  no  statement  of  any  matter 
going  to  show  the  title  was  valid.  Whether  it  was  good  or  not, 
was  a  question  of  law,  for  the  decision  of  which  Douglass,  so  far 
as  then  appeared,  was  as  competent  as  Littler ;  and  the  facts 
upon  which  an  opinion  might  be  based,  were  placed  within  his 
reach  by  Littler,  by  his  disclosing  the  proper  source  of  informa- 
tion. The  parties  dealt  upon  equal  terms  ;  there  was  no  special 
confidence  or  relations  existing  between  them,  and  Littler  was 
not  guilty  of  a  fraud  for  which  this  deed  can  be  avoided,  merely 
because  he  expressed  an  opinion  as  to  the  validity  of  his  tax-title, 
which  the  facts  did  not  justify,  so  long  as  he  made  no  false  state- 
ments to  what  those  facts  were. 


37 

"Ordinarily,  matters  of  opinion  between  parties  dealing  upon 
equal  terms,  though  falsely  stated,  are  not  relieved  against." 

Drake  vs.  Latham,  SO  111.  270. 

1  Story  Eq.  Jur.,  sec.  197. 

Stover  vs.  Mitchell,  45  111.  213. 

Coil  vs.  Pittsburg  Fern.  Co!,,  40  Penn.  St.  445. 

Pike  vs.  Fay,  101  Mass.  217. 

Muoney  vs.  Miller,  102  Mass.  217. 

1  Story's  Eq.,  sees.  190-191. 

On  the  ground,  therefore,  of  mere  inadequacy  of  price,  if  any 
existed,  we  do  not  think  this  such  a  case  as  would  justify  a  court 
of  equity  in  granting  any  relief,  as  it  is  not  sufficiently  and 
grossly  inadequate  to  shock  the  conscience  and  prove  clearly  the 
existence  of  fraud. 

There  must,  in  general,  be  positive  fraud,  or  constructive  fraud, 
and  this  not  merely  suspected,  but  proved. 

Trenchard  vs.  Worley,  2  P.  Wms.  166. 
1  Fonbl.  Eq.,  chap.  2,  sec.  8,  note. 

Inadequacy  of  price,  it  is  now  a  well  settled  rule,  affords  no 
ground  of  relief.  It  is  but  one  of  a  thousand  circumstanoes  from 
which  fraud  may  be  inferred. 

1  Story's  Eq.,  sec.  241. 

1  Fonbl.  Eq.,  chap.  2,  sec.  9,  note. 

At  the  time  the  deeds  were  made  (1856)  the  assessed  value  of 
the  land  was  but  $960,  and  had  remained  at  that  for  two  years, 
and  this,  too,  though  the  bill  avers  that  a  large  and  thrifty  colony 
had  located  a  flourishing  village  in  the  immediate  neighborhood 
of  this  land  in  1849  and  1850,  and  that  the  Illinois  Cent.  E.  E. 
and  the  Michigan  Cent.  E.  E.  completed  their  roads  through  this 
land  in  1852.  Yet  the  assessed  valuation  of  the  land — that  which 


is  the  most  correct  and  reliable — gives  it  at  $240  in  1850,  $320  in 
1851,  $400  in  1852,  $800  in  1853-54,  $960  in  1855-56.  Just  what 
this  land  cost  the  McEwens,  the  bill  does  not  aver.  For  aught 
disclosed  in  the  bill,  it  may  have  cost  them  its  actual  value,  for 
their  expenses  in  procuring  the  land  warrant,  locating  the  same, 
and  procuring  the  patent,  and  paying  agents  to  look  after  the 
same  and  pay  taxes,  are  not  fully  stated  in  the  bill.  At  best,  if 
there  was  any  inadequacy  of  price  paid  for  the  deeds,  was  it  such 
a  circumstance  as  would  lead  the  court  to  infer  fraud  on  the  part 
of  the  McEwens  ?  And  if  it  was  not,  it  is  not  a  material  ques- 
tion. That  the  land  became  very  valuable  in  1880,  when  the 
McEwen's  sold  it,  nearly  a  quarter  of  a  century  afterwards,  is  a 
matter  of  no  consideration  to  this  court. 

In  reference  to  the  averments  in  the  bill  as  to  the  concealing  of 
the  fact  that  they  had  procurred  the  land  warrant  and  located 
the  same,  and  had  a  patent  for  the  same,  and  that  David  Mills- 
paugh  died  ignorant  of  the  fact  that  the  warrant  had  been  ob- 
tained; that  Christina  Lynn  and  Archibald  Millspaugh  were 
never  informed  of  the  fact  that  the  warrant  had  been  obtained 
and  located  and  a  patent  procured,  until  1856,  in  May,  by  the 
McEwens,  it  is  sufficient  to  say,  the  laws  of  the  United  States 
sec.  4748,  U.  S.  Revised  Statutes,  in  force  at  the  time  this  land 
warrant  was  issued,  in  reference  to  notification  of  claimants  for 
land  warrants,  is  as  follows,  to-wit : 

"That  the  Commissioner  of  Pensions,  on  application  being 
made  to  him,  in  person  or  by  letter,  by  any  claimant  or  applicant 
for  pension,  bounty  land,  or  other  allowance  required  by  law  to  be 
adjusted  or  paid  by  the  Pension  office,  shall  furnish  such  persons, 
free  of  all  expense,  all  such  printed  instructions  and  forms  as  may 
be  necessary  in  establishing  and  obtaining  said  claims ;  and  on 
the  issuing  of  a  certificate  of  pension,  or  a  bounty  land  warrant, 
he  shall  forthwith  notify  the  CLAIMANT  or  APPLICANT,  and  also  the 
agent  or  attorney  in  the  case,  if  there  be  one,  that  such  certificate  has 
been  issued  or  allowance  made,  and  the  date  and  amount  thereof." 


39 

Here  we  have  the  statutory  law  of  the  United  States,  which 
commando  and  makes  it  the  official  duty  of  the  Commissioner  of 
Pensions  to  notify,  forthwith,  the  claimant  or  applicant,  and  also  the 
agent  or  attorney,  if  there  be  one,  that  such  certificate  has  been  issued 
or  allowance  made,  and  the  date  and  amount  thereof. 

This  government  official  undoubtedly  so  notified  David  Mills- 
paiujh  and  Christina  Lynn,  June  17,  1847,  when  the  land  warrant 
was  issued,  some  two  years  before  David  died.  That  such  a  land 
warrant  had  been  issued  by  the  Government,  and  according  to  the 
averments  of  the  bill,  it  issued  to  them  jointly  as  heirs  of  Henry 
Millspaugh,  the  soldier  in  the  war  of  1812. 

This  official  had  certainly  no  interest  in  defrauding  the  Mills  - 
paughs  out  of  the  proceeds  of  this  land  warrant,  nor  of  conspiring 
with  the  McEwens  to  do  so.  He  was,  moreover,  to  notify  their 
agent  or  attorney,  if  there  was  one,  of  the  same  fact.  It  is  be- 
yond the  presumption  of  the  complainant  or  his  imaginative  attor- 
neys to  deny  that  this  was  done.  It  is  also  probable,  amounting 
to  a  positive  certainty,  that  the  McEwens  had  regular  powers  of 
attorney  to  receive  this  land  warrant  from  the  parties  to  whom 
it  was  issued,  or  it  would  not  have  been  sent  to  them  by  this 
official. 

Moreover,  public  notice  is  given  of  all  such  transactions.  In 
U.  S.  Revised  Statutes,  sec.  458,  we  find  as  follows,  to-wit : 

"All  patents  issuing  from  the  General  Land  Office,  shall  be 
issued  in  the  name  of  the  United  States,  and  signed  by  the  Pres- 
ident, and  countersigned  by  the  Recorder  of  the  General  Land 
Office,  and  shall  be  recorded  in  the  office,  in  books  kept  for  the 
purpose."  (In  force  April,  1812.) 

Section  460,  U.  S.  Revised  Statutes,  is  as  follows,  to-wit : 

"Whenever  any  person  claiming  to  be  interested  in  or  entitled 
to  land  under  any  grant  or  patent  from  the  United  States,  applies 
to  the  department  of  the  interior  for  copies  of  papers  filed,  and 


40 

remaining  therein,  in  anywise  affecting  the  title  to  such  lands, 
it  shall  be  the  duty  of  the  Secretary  of  the  interior,  to  cause  such 
copies  to  be  made  out  and  authenticated,  under  his  hand  and 
the  seal  of  the  General  Land  Office,  for  the  person  so  applying." 

Here,  then,  under  statutory  law  of  the  United  States,  the  Secre- 
tary of  the  Interior  is  obliged  to  keep  full  records  of  issues  of  land 
warrants  and  patents,  and  also  to  send  copies  of  the  same  to  all 
persons  who  apply  and  who  are  interested  in  lands  thereunder ; 
and  the  Commissioner  of  Pensions  is  obliged,  under  statutory  law 
of  the  Government  of  the  United  States,  to  notify  all  claimants 
and  applicants  for  land  warrants.  These  officials  undoubtedly 
did  their  official  duties,  and  notified  David  Millspaugh  and  Chris- 
tina Lynn  of  the  date  of  their  land  warrant,  that  it  had  been  is- 
sued, and  the  amount  of  their  interest  therein,  as  far  as  the  gov- 
ernment was  concerned.  They,  therefore,  hai  notice  of  its  issue, 
and  knew  tchere  to  apply,  if  they  desired  any  information  concerning 
the  same.  What,  then,  becomes  of  the  averments  of  the  bill  as  to 
the  ignorance  of  these  claimants  of  the  issue  and  location  of  the 
land  warrant,  and  the  procuring  of  the  patent  for  the  same,  and 
the  averred  concealment  of  those  facts  by  the  McEwens  ?  It  fails 
utterly,  and  could  scarcely  have  been  possible,  and  yet  the  whole 
claim  of  the  bill  rests  for  its  foundation  on  this  averred  ignorance 
of  the  Millspaughs  of  what  was  done  by  the  McEwens,  and  their 
averred  concealment  of  their  every  act  in  this  connection. 

If,  then,  there  was  no  concealment,  on  the  part  of  the  McEw- 
ens, of  the  facts  relative  to  procuring  the  patent  and  retaining 
the  same,  as  we  think  impossible  under  the  above  circumstances 
and  laws,  and  their  statements  as  to  the  value  of  the  land,  and 
as  to  owning  the  land  under  tax  titles,  being  mere  opinions  of 
theirs,  and  the  inadequacy  of  price  paid  for  the  land,  if  any  ex- 
isted, at  the  dates  of  the  deed,  in  1856,  these  parties  stood  on 


41 

equal  footing,  and  could  contract  with  each  each  other  as  if  no 
former  relations  had  ever  existed  between  them  in  relation  to 
these  lands,  and  the  procuring  a  patent  for  the  same. 

FIDUCIARY   OR  TRUST   RELATIONS. 

The  bill  avers  a  relation  of  Trust  and  Agency  as  existing  be- 
tween the  Me E wens  and  David  Millspaugh  and  Christina  Lynn, 
and  their  heirs.  Undoubtedly  the  McEwens,  according  to  the 
averments  of  the  bill,  were  the  agents  or  attorneys  of  David 
Millspaugh  and  Christina  Lynn,  to  do  a  definite  and  particular 
thing,  and  that  was  to  procure  for  them  a  land  warrant,  locate 
the  same,  and  perfect  their  title  thereto  to  160  acres  of  land,  as 
heirs  of  the  soldier  of  1812,  Heury  Millspaugh;  and  when 
they  had  done  this,  their  relation  as  principal  and  agent,  or  at- 
torney and  client,  ceased.  And  for  their  services  they  were  to 
have  half  of  the  land,  and  pay  all  expenses  connected  therewith. 
When  they  announced  that  they  had  accomplished  this,  which 
they  did  in  1856,  their  agency  terminated,  and  out  of  this  per- 
fectly natural  business  transaction  there  could  not  possibly,  as 
we  think,  arise  any  such  fiduciary  or  trust  relation,  as  is  averred 
by  the  bill,  that  would  in  any  way  in  law  or  equity  prohibit  the 
McEwens  from  purchasing  the  interest  of  these  heirs,  as  tiiey  did 
do  in  1856. 

These  heirs  were  all  of  age,  not  imbecile  in  body  or  mind,  or 
in  any  way  incapacitated  to  contract.  They  were  not  under  any 
form  of  distress,  or  compelled  to  sell.  They  were  entirely  com- 
petent to  act  on  the  statements  of  the  McEwens,  whether  true  or 
false,  as  they  pleased.  They  had  full  notice  that  the  land  warrant 
had  been  issued  and  located,  and  patent  issued.  They  knew 


42 

where  the  land  was  located,  at  least,  from  the  deeds  the 
McEwens  asked  them  to  sign,  if  from  no  other  source.  They 
could  easily  have  ascertained  the  value  of  the  land.  The  means 
were  within  their  power,  and  the  McEwens  were,  in  no  sense, 
their  guardians,  administrators,  executors  or  trustees,  out  of 
which  the  fiduciary  relations,  sought  to  be  charged  on  them  in 
the  bill,  arise. 

The  fact  that  they  did  sell  to  the  McEwens  the  land  in  contro- 
versy at  a  price,  which,  after  a  quarter  of  century,  seems  to  the 
complainant  inadequate,  will  not  justify  a  court  of  equity  to  in- 
terfere, under  the  circumstances  here  presented. 

If  there  was  any  fiduciary  relations  whatever  between  the 
McEwens  and  the  Millspaughs,  at  most  it  could  only  be  a  result- 
ing or  constructive  trust,  and  in  such  cases  the  statute  of  limita- 
tions would  apply,  while  it  might  in  some  cases  be  different  in 
case  of  an  express  trust  of  a  trustee  and  his  cestui  que  trust. 

Lapse  of  time,  especially  when  coupled  with  occupancy  and 
improvements  of  the  property  by  the  alleged  trustee,  has  been 
held  a  bar  to  the  enforcement  of  a  resulting  trust  in  many  cases, 
even  though  the  fraud  was  evident,  and  the  rights  to  relief  origi- 
nally clear. 

Sec.  15,  Federal  Reporter,  p.  761,  and  very  numerous 
citations. 

Even  children  must  act  with  reasonable  promptness.  If  a  child 
seeking  to  enforce  against  a  parent  a  trust  resulting  from  a  con- 
veyance from  the  child  to  the  parent,  obtained  by  the  parent's 
exercise  in  improper  influences  waits  until  the  parent  has  died, 
or  until  third  parties  have  acquired  rights,  the  remedy  will  be 
barred  by  lapse  of  time  and  laches. 


43 

The  rule,  that  the  Statute  of  Limitations  will  not  protect  trus- 
tees, applies  only  to  express  and  not  constructive  trusts. 
Boone  vs.  Chiles,W  Pet.  177. 
Hayinan  vs.  Really,  3  Cranch,  c.  c.  325. 
Elmcndorfvs.  Taylor,  10  Wheat.  152. 
Beaubien  vs.  Beaubien,  23  How.  190. 

Trust  signifies  a  holding  of  property  subject  to  a  duty  of  em- 
ploying it,  or  applying  its  proceeds  according  to  directions  given 
by  the  persons  from  whom  it  was  derived.  A  Constrictive  Trust 
is  "a  trust  founded  neither  on  an  expressed  nor  on  a  presumable 
intention  of  the  party,  but  raised  by  a  construction  of  equity  with- 
out regard  to  intention,  and  simply  for  the  purpose  of  satisfy- 
ing the  demands  of  justice  and  good  conscience." 

It  is  evident  from  these  definitions  that  the  MeEwens  could 
not  possibly,  under  the  facts  and  circumstances  of  this  case, 
as  averred  in  the  bill  of  complainant,  be  held  amenable  to  a 
court  of  equity  as  having  any  express  trust  from  any  of  the 
Mill-paughs,  and  if  anything,  it  couMonly  be  an  implied  or  con- 
structive trust.  Nor  do  we  believe  that  by  any  possible  inference 
from  the  averments  of  the  bill  can  any  constructive  trust  be  es- 
tablished in  a  court  of  equity,  as  the  acts  of  the  MeEwens  can  be 
explained  as  a  very  simple,  ordinary  business  transaction. 

"It  is  doubtless  true  that  when  a  person  obtains  the  legal  title 
to  real  property  by  imposition  or  fraud,  and  under  such  circum- 
stances that  he  ought  not,  according  to  the  rules  of  equity,  to  hold 
and  enjoy  the  beneficial  interests  in  the  property,  courts  of 
equity,  in  order  to  administer  complete  justice  between  the  par- 
ties, will  raise  a  trust  out  of  such  circumstances ;  and  this  trust 
they  will  fasten  upon  the  conscience  of  the  offending  party  and 
will  convert  him  into  a  trustee  of  the  legal  title,  and  order  him  to 
hold  it,  or  execute  the  trust  in  such  a  mnnner  as  to  protect  the 
rights  of  the  defrauded  party.  Such  trusts  are  called  constructive 
trusts." 

Perry  on  Trusts,  Sec.  166. 


Under  this  rule  the   complainant   seeks  to  have  the  McEwens 
held  as  trustees  of  the  land  in  dispute. 

But  the  case  at  bar  does  not  come  under  this  rule,  for  the 
McEwens  did  not  obtain  the  legal  title  to  this  land  until  1856, 
when  all  prior  fraudulent  concealment,  if  any  existed,  as  to  pro- 
curing the  land  warrant  and  patent  which  left  the  legal  title  in 
David  Millspaugh  and  Christina  Lynn,  from  June  17,  1847,  to 
May  26,  1856,  had  been  discovered  to  them  by  the  McEwens  and 
condoned  by  them  in  the  new  contract,  or  quit-claim  deeds  made 
in  1856.  There  was  at  that  time  no  other  imposition  or  fraud 
or  undue  influence  practiced  by  the  McEwens,  save  the 
averred  misrepresentations  as  to  the  value  of  the  land  and  their 
ownership  of  the  whole  tract  by  virtue  of  payment  of  taxes  for 
seven  years,  and  these,  as  we  have  shown  above,  were  their  mere 
opinions,  and  not  sufficient  to  establish  constructive  fraud  even 
under  this  rule  given  by  Perry,  and  cited  above. 

In  Wormley  vs.  Wormhy,  98  Ills.  547,  the  court  say  :  "It  can 
not  be  a  resulting  trust  as  to  any  one  of  the  tracts,  as  such  trusts 
are  never  created  by  agreement,  but  usually  by  the  purchase  of 
land  with  money  of  one  person  in  the  name  of  another,  without 
the  consent  of  the  owner  of  the  means." 

Sheldon  vs.  Hard'uuj,  44  Ills.  ^8 

Holmes  vs.  Holmes,  44  Ills.  168. 

"A  resulting  trust  is  never  raised  unless  the  money  of  the  cestui 
que  trust  was  used  in  the  purchase  in  which  the  trust  is  claimed." 

Holmes  vs.  Holmes,  44  Ills.  168. 

"A  resulting  trust  can  not  be  created  by  a  contract  or  agree- 
ment. If  a  trust  of  any  kind  is  created  by  contract,  it  will  be 
express  and  not  a  resulting  trust."  Ib.,  168. 


45 

A  trust  can  only  arise  in  favor  of  a  party  who  pays  the  whole 
or  some  definite  part  of  the  purchase  money,  at  the  time  the 
purchase  is  made. 

Alexander  vs.    Trainee,  13  Ills.  '221;    Ibid.,  Perry  vs. 
Me  Henry,  227. 

WlUiums  vs.  Broini,  14  Ills.  201. 
Loo  in  in  vs.  Loom  is,  28  Ills.  454. 
Walter  vs.  Klock  et  al,,  55  Ills.  362. 

"To  establish  a  resulting  trust,  the  money  of  the  cestiu  que 
trust  must  be  used  in  the  purchase  of  the  property  of  which  the 
trust  is  claimed  to  exist.  Such  a  trust  can  not  be  created  by 
agreement  or  contract." 

Remington  vs.'Gampbell,  60  111.  516. 

The  legislatures  of  New  York,  Michigan  and  Wisconsin  pro- 
vided by  statutes  that  no  resulting  trust  should  exist  except  where 
the  title  was  taken  without  the  knowledge  or  consent  of  the  party 
furnishing  the  consideration. 

Sheldon  vs.  Holme*,  44  111.  69— Note. 

Under  the  definition  of  trusts,  it  seems  to  us  that  there  is  no 
such  relations  between  the  McEwens  and  the  Millspanghs  as 
to  create  a  trust  of  any  kind,  and  as  the  McEwens  paid  all  the 
money  there  was  paid  on  the  consideration,  and  as  we  have 
shown  already  that  there  was  no  fraud  in  obtaining  the  title 
from  the  government  to  David  Millspaugh  and  Christina  Lynn, 
and  as  they  ac'ed  under  an  agreement  and  deeds  throughout, 
there  could  not  possibly  arise  out  of  their  acts,  even  as  averred 
in  the  bill,  any  resulting  or  constructive  trust. 

LACHES. 

Laches  need  not  be  pleaded, — if  the  objection  is  apparent  on 
the  bill  itself,  it  may  be  taken  by  demurrer. 
Maxwell  vs.  Kennedy,  8  How.  222. 
Lansdale  vs.  Smith,  16  Ent.  N.  J.  28. 


46 

And  if  the  cause,  as  it  appears  on  the  hearing,  is  liable  to  the 
objection,  the  Court  will  refuse  relief  without  inquiring  whether 
there  is  a  demurrer,  plea,  or  answer  setting  it  up. 

Sullivan  vs.  Portland  It.  R.  Co.,  94  U.  S.  811. 

Badger  vs.  Rodger,  2  Wall.  95. 

"Nothing  can  call  forth  a  court  of  equity  into  activity  but 
conscience,  good  faith  and  reasonable  diligence.  When  these 
are  wanting  the  court  is  passive,  and  does  nothing.  Laches  and 
negligence  are  always  discountenanced,  and  therefore,  from  the 
beginning  of  this  jurisdiction,  there  was  always  a  limitation  of 
of  suits  in  this  court." 

Smith  vs.  Clay,  Amb.  645. 

Brown  vs.  Co.  of  Buena  Vista,  95  U.  S.  160. 

In  that  case,  Chief  Justice  Swayne  says  :  "The  law  of  laches, 
like  the  principles  of  the  limitation  of  actions,  was  dictated  by 
experience,  and  is  founded  on  a  salutary  policy.  The  lapse  of 
time  carries  with  it  the  memory  and  life  of  witnesses,  the  muni- 
ments of  evidence,  and  the  other  means  of  proof.  The  rule  that 
gives  it  the  effect  prescribed,  is  necessary  to  the  peace,  repose  and 
welfare  of  society.  A  departure  from  it  would  open  an  inlet  to 
the  evils  intended  to  be  excluded."  ' 

"A  defense  peculiar  to  courts  of  equity  is  founded  on  the  mere 
lapse  of  time,  and  the  staleuess  of  claims  in  such  cases  where  no 
statutes  of  limitations  directly  cover  the  case.  In  such  cases, 
courts  of  equity  act  sometimes  by  analogy  to  the  law,  and  some- 
times act  upon  their  own  inherent  doctrine  of  discouraging,  for 
the  peace  of  society,  antiquated  demands,  by  refusing  to  interfere 
when  there  is  gross  laches  in  prosecuting  rights,  or  long  and 
unreasonable  acquiescence  in  the  assertion  of  adverse  rights." 

2  Story's  Eq.,  1520. 

The  U.  S.  Supreme  Court  say: 

"Every  principle  of  justice  and  fair  dealing,  of  the  security  of 
rights  long  recognized  of  repose  of  society,  and  the  intelligent  ad- 
ministration of  justice,  forbids  us  lo  enter  upon  an  inquiry  into 
that  transaction  40  years  after  it  occurred,  when  all  the  parties 
had  lived  and  died  without  complaining  of  it,  upon  the  sugges- 
tion of  a  construction  of  a  will  different  from  that  held  by  parties 
concerned  and  acquiesced  in  by  them  throughout  all  this  time." 

Clarke  vs.  Broomans,  Ex'r,  15  Wall.  509. 


47 

"A  court  of  chancery  is  said  to  act  on  its  own  rule  in  regard  to 
stale  claims  :ind  demands;  and  independent  of  the  statute,  it 
will  refuse  to  give  relief  when  a  party  has  long  sl-pt  on  his  rights, 
and  when  the  possession  of  the  property  has  been  held  in  good 
faith  without  disturbance,  and  has  greatly  increased  in  value." 

Boone  vs.  Chiles,  10  Pet.  248. 

"Courts  of  equity  refuse  to  interfere  after  a  considerable  lapse 
of  time  from  considerations  of  public  policy,  from  the  difficulty 
of  doing  entire  justice,  when  the  original  transactions  have  be- 
come obscure  by  time,  and  the  evidence  may  be  lost,  and  from 
the  consciousness  that  the  repose  of  titles  and  the  security  of 
property  are  mainly  promoted  by  a  full  enforcement  of  the 
maxim:  Vigilantibtis,  non  dormientilus,  jura  mlwenient" 

1  Story's  Eq.  Ju.  520. 

Fonbl.  Eq.,  B.  1,  ch.  4,  sec.  27. 

Jeremy  on  Eq.  Ju.,  B.  3,  pi.  3,  ch.  5,  549-550. 

Courts  of  equity,  although  not  in  strictness  bound  by  the  stat- 
utes of  limitations,  act  by  analogy  to  it,  and  in  a  proper  case, 
apply  an  equitable  rule  to  the  limitations  preseribed  by  the 

statutes. 

Shencood  vs.  Sutton,  5  Mass.  143.     See  5  Mass.  95. 

Bank  of  Louisiana  vs.  Stafford,  12  How.  327. 

The  personal  representative  is  affected  by  the  delay  or  acquies- 
cence of  the  decedents  to  the  same  extent  as  if  it  were  his  own. 
Haydeu  vs.  Billy,  8  Federal  Law  Eept,  (N.  S.)  266. 

Under  the  above  citations  on  the  question  of  laches,  and  the  facts 
intbis  case  at  bar,  the  complainant  is  not  entitled,  we  think,  to  any 
relief,  even  upon  his  own  showing.  He  stands  in  no  better  position 
than  his  father,  Archibald  Millspaugh,  and  the  other  heirs,  but  is 
affected  by  the  delay  or  acquiescence  of  the  decedents  to  the  s nine 
extent  as  if  they  were  his  own.  Undoubtedly,  David  Millspaugh 
must  have  had  the  notice  from  the  Commissioner  of  Pensions  which 
that  official  was  obliged  by  }&vr  to  send  forthwith  on  the  issuing  of  the 


43 

land  warrant  to  David  Millspaugh  and  Christina  Lynn,  June  17, 
1847,  and  undoubtedly  Christina  Lynn  received  a  similar  notice  at 
the  same  time.  Then  the  issuing  of  the  patent,  November  30, 1849, 
and  the  locating  of  the  land  warrant  August  23,  1849,  through 
the  land  office  in  Chicago,  were  acts  of  public  record,  and  the 
means  of  ascertaining  what  had  been  done  were  within  the  reach 
of  Archibald  Millspaugh  and  all  the  other  heirs  interested  in  this 
land.  They  must  have  known  that  as  heirs  of  David  Millspaugh 
and  Christina  Lynn,  they  were  entitled  to  a  land  warrant  by 
virtue  of  being  heirs  of  Henry  Millspaugh,  the  soldier  in  the  war 
of  1812.  It  would  be  preposterous,  in  this  age  of  activity  and 
anxiety  to  accumulate  property,  that  they  could  remain  in  igno- 
rance of  these  facts.  There  can  be  no  denial  of  the  fact,  that 
whatever  may  be  said  as  to  prior  concealment,  the  fact  that  a 
land  warrant  had  been  obtained  from  the  Government  and  loca- 
ted, and  a  patent  received  therefor,  was  fully  disclosed  to  Archi- 
bald Millspaugh  and  wife  and  Wm.  S.  Millspaugh  and  wife,  May 
26,  1856,  and  to  all  the  other  heirs  when,  in  that  same  year,  they 
all  made  their  quit-claim  deeds. 

They  then  knew  where  the  land  was  located,  and  could  easily 
have  ascertained  its  value,  had  they  chose  to  do  so.  Archibald 
Millspaugh  lived  within  200  miles  of  the  land  from  1856,  when 
the  quit-claim  deed  was  made,  to  1871,  over  15  years,  when  he 
died ;  his  widow,  21  years  when  she  died,  in  1877.  Here,  then, 
was  acquiescence  in  the  acts  of  the  McEwens  for  15  and  21  years, 
of  the  parties  giving  the  quit-claim  deeds  to  the  McEwens  on  the 
26th  of  May,  1856,  and  no  complaint  of  fraud,  or  undue  influ- 
ence, or  inadequacy  of  price,  or  imposition  ;  and  the  parties  were 
in  the  prime  of  life,  and  fully  able  to  protect  their  rights  and 
make  their  own -contracts. 


49 

Then,  again,  the  present  complainant  being  eight  years  old  in 
1856,  when  the  quit-claim  deeds  were  made,  is  now  37  years  of 
age,  having  been  of  age  16  years.  He  has  lived,  since  then,  with- 
in 200  miles  of  the  greatest  city  of  the  century,  in  many  respects, 
and  of  this  land.  That  he  could  have  lived  so  long  in  the  very 
place  where  the  deeds  were  made,  and  not  have  known  of  his 
father's  interests  in  this  land,  under  the  circumstances,  seems 
utterly  incredible. 

At  any  rate,  it  would  be  a  very  great  stretch  of  equity  to  grant 
any  relief  in  a  case  where  the  interested  parties  had  slept  on 
their  supposed  rights  from  1856  to  1885,  a  period  of  thirty  years, 
while  during  this  whole  time  the  McEwens  and  their  grantees 
have  paid  the  taxes,  held  peaceful  and  undisputed  possession  of 
the  lands,  and  built  thereon  a  large  and  flourishing  town,  and  in- 
vested millions  of  dollars  in  large  and  expensive  manufacturing 
interests,  without  any  effort  whatever  on  the  part  of  the  sleepers 
to  assert  their  supposed  rights.  It  would  be  an  exceedingly  diffi- 
cult thing  to  find,  a  staler  claim  and  one  rc-s-//////  on  a  more  slender 
foundation,  and  we  know  of  no  rule  of  equity,  practice  or  prece- 
dent that  would  authorize  a  court  to  interfere  at  this  late  day,  to 
grant  the  relief  sought,  even  if  a  meritorious  case  could  have 
been  made  in  1856,  between  the  Millspaugh  heirs  and  the  Mc- 
Ewens, when  the  concealment  fraud  on  the  part  of  the  McEwens, 
if  there  ever  was  any,  must  have  been  discovered  and  fully  dis- 
closed to  the  Millspaugh  heirs  when  the  deeds  were  executed  to 
the  McEwens.  The  fact,  too,  that  the  McEwens  held  the  land 
from  1856  to  1880,  is  evidence,  at  least,  that  they  were  not  afraid 
of  their  title,  and  were  willing  that  it  should  be  investigated ;  and 
the  fact  that  the  title  stood  this  way  undisturbed  for  26  years, 
when  such  a  proceeding  as  the  complainant's,  if  it  had  any  foun- 
dation, would  have  placed  the  parties  in  statu  quo,  will  go  far  to- 


50 

ward  forbidding  the  relief  now  sought,  when  the  land  has  become 
exceedingly  valuable,  and  rights  of  innocent  parties  have  accrued. 

Then,  again,  equity  cannot  interfere  after  such  a  lapse  of  time, 
in  which  most  of  the  parties  of  the  transaction  are  dead,  and  the 
records  largely  lost  or  destroyed,  and  where  it  would  be  impossi- 
ble to  put  the  parties  in  statu  quo. 

THE    STATUTE    OF   LIMITATIONS. 

But  the  statute  of  limitations,  in  connection  with  the  laches 
apparent  on  the  face  of  complainant's  bill,  is  fatal  to  the  relief 
prayed  for. 

Courts  of  equity,  although  not  strictly  bound  by  the  statute  of 
limitations,  act  by  analogy  to  it,  and  in  proper  case  apply  an 
equitable  rule  to  the  limitations  prescribed  by  the  statute. 

Slienvood  vs.  Sutton,  5  Mass.  143. 

See  5  Mass.  95. 

Bank  of  Louisiana  vs.  Stafford,  12  How.  327. 

"Chancery  adopts  limitations  at  law,  or  treats  less  periods  as 
barring  claim." 

Castner  vs.  Walrod,  83  111.  171. 

Courts  of  equity  act  by  analogy  upon  limitation  law. 
Sloan  vs.  Graham,  85  111.  26. 

Upon  application  of  heirs,  administrator's   sale  will  not  be  set 
aside  for  mere  irregularities  after  lapse  of  nineteen  years. 
Goodbody  vs.  Goodbody,  95  111.  456. 

Equity  follows  law  in  allowing  defense  of  statute. 
Harris  vs.  Mills,  28  111.  44. 

"That  no  person  shall  commence  an  action  for  recovery  of 
lands,  nor  make  an  entry  thereon,  unless  within  twenty  years 


51 

after  the  right  to  bring  such  action,  or  make  such  entry  first  ac- 
crued, or  within  twenty  years  after  he  or  those  from,  by,  or  under 
whom  he  claims,  have  been  seized  or  possessed  of  the  premises, 
except  as  hereinafter  provided." 

Kevised  Statutes  Illinois,  ch.  83,  par.  1. 

"If  such  right  or  title  first  accrued  to  an  ancestor,  or  prede- 
cessor of  the  person  who  brings  the  action,  or  makes  the  entry,  or 
to  any  person  from,  by,  or  undei-  whom  he  claims,  the  twenty 
years  shall  be  computed  from  the  time  when  the  right  or  title  so 
first  accrued." 

Ibid.  par.  2. 

"  The  right  to  make  an  entry  or  bring  an  action  to  recover  land, 
shall  be  deemed  to  have  first  accrued,  at  the  times  respectively 
hereinafter  mentioned  ;  that  is  to  say — 

"1st.  When  any  person  is  disseized,  his  right  to  entry  or  action 
shall  bv3  deemed  to  have  accrued  at  the  time  of  such  disseizin. 

"2.  When  he  claims  as  heir  or  devisee  of  one  who  died  seized, 
his  right  shall  be  deemed  to  have  accrued  at  the  time  of  such 
death,  unless  there  is  a  tenancy  by  the  curtesy  or  other  estate 
intervening  after  the  death  of  such  ancestor  or  devisor ;  in  which 
case  his  right  shall  be  deemed  to  accrue  when  such  intermediate 
estate  expires,  or  when  it  would  have  expired  by  its  own  limita- 
tions." 

Ibid.  par.  3. 

Evidently  this  statute  of  limitations  would  commence  to  run, 
under  paragraph  2,  from  the  time  when  the  right  or  title  first  ac- 
crued to  the  ancestor  or  predecessor  of  the  person  bringing  the 
action.  The  right  or  title,  therefore,  first  accrued  to  David  Mills- 
paugh  in  November  30,  1849.  The  date  of  the  patent  that  gave 
him  title,  and  would,  under  the  twenty  years'  limitation  of  this 
statute,  have  expired  November  30,  1869,  for  this  action  is  brought 
by  Gilbert  D.  Millspaugh,  who  claims  under  him  and  his  title,  and 
has  no  better  or  other  claim  under  this  title  than  David  Mills- 
paugh or  his  heirs,  through  whom  this  title  passed  to  the 
Me  E  wens. 

"Under  the  statute,  it  is  not  essential  that  a  party  who  takes 
possession  of  land  and  holds  adversely  to  the  owner,  should 
enter  under  a  deed  or  muniment  of  title  to  cause  the  limitation 


52 

of  twenty  years  to  run  in  his  favor.  It  is  sufficient  for  a  party  to 
take  possession  under  a  claim  of  ownership,  and  hold  the  time 
required  by  the  statute." 

Weber  vs.  Anderson,  73  111.  439. 
Tivrney  vs.  Chamberlain,  15  111.  273. 

"It  is  the  possession  that  bars  the  owner  of  a  recovery.  If  the 
owner  permits  the  occupation  of  his  land  for  a  period  of  twenty 
years,  by  a  party  asserting  ownership,  he  will  be  barred  by  the 
statute  from  making  an  entry,  or  bringing  an  action  to  regain 
possession.  No  deed  is  required  to  the  inception,  the  continuance 
or  completion  of  the  bar." 

"A  deed  is  not  necessary  to  transfer  the  possession  of  land  held 
adversely  to  the  owner,  and  where  one  person  succeeds  to  the  pos- 
session of  another,  and  it  becomes  necessary  to  connect  the  pos- 
session of  the  two  to  make  the  period  required  to  bar  the  owner, 
the  transfer  of  possession  may  be  shown  by  parol  evidence." 

Weber  vs.  Anderson,  73  111.  439. 
Scheetz  vs.  Fitzwater,  5  Burr.  131. 

"Doubtless  the  possession  must  be  connected  and  continuous, 
so  that  the  possession  of  the  true  owner  shall  not  constructively 
intervene  between  them ;  but  such  continuity  and  connection 
may  be  effected  by  any  agreement,  conveyance  or  understanding, 
which  has  for  its  object  a  transfer  of  the  rights  of  the  possessor, 
or  of  his  possessions,  and  is  accompanied  by  a  transfer  of  posses- 
sion in  fact." 

Smith  vs.  Chapin,  81  Conn.  531. 

'•Not  even  a  writing  is  necessary,  if  it  appear  that  the  holding 
is  continuous  and  under  the  first  entry." 

Crispin  vs.  Hi'iinnren,  50  Mo.  544. 
Mcnkins  vs.  Blumenthall,  27  Mo.  '-03. 

"The  mode  adopted  for  the  transfer  of  the  possession,  may  give 
rise  to  questions  between  the  parties  to  the  transfer;  but  as 
respects  the  i-if/Jitx  of  Iliird  persons,  against  whom  the  possession 
is  held  adversely,,  it  seems  to  us  to  be  immaterial,  if  successive 
transfers  of  possession  were,  in  fact,  made,  whether  such  trans- 
fers were  effected  by  Will,  by  deed  or  by  mere  a  agreement,  either 
written  or  verbal." 

McNeely  vs.  Lankan,  22  Ohio  St.  32. 
Murr  vs.  Gillian,  I  Caldwell,  511. 
Overfield  vs.  Christie,  1  Ser.  and  Raw.  173. 
Shannon  vs.  Kinney,  1  A.  K.  Marshall,  3. 


53 

Under  these  decisions,  there  would  seem  to  be  no  doubt  but 
that  the  complainant  is  barred  from  any  supposed  right  to  the 
title  or  interest  in  this  land.  For  the  McEwens  had  possession 
of  the  land  from  1849,  by  the  payment  of  taxes  and  by  acts  of 
ownership,  and  claiming  ownership,  and  actually  owning  one- 
half  of  the  land  by  virtue  of  the  agreement  with  David  Mills- 
paugh  and  Christina  Lynn,  of  1846.  In  1852,  their  claim  was 
recognized  publicly  by  a  court,  in  the  condemnation  proceedings 
of  the  111.  Cent  K.  E.  Co..  in  which  they  were  made  defendants. 
In  1856,  they  received  deeds  from  all  the  heirs  to  this  land,  and 
held  continuous,  peaceable,  undisturbed  possession,  and  paid  the 
taxes  until  1880.  From  the  time  they  look  possession  of  this 
land  in  1850,  to  the  time  they  sold,  in  1880,  thirty  years  of  con- 
tinuous, undisputed  possession,  had  been  held  and  enjoyed  by  them. 
Their  grantees  held  the  same  possession,  and  under  the  same 
title,  up  to  1884  or  1885,  making  a  continuous,  undisturbed  pos- 
session, under  the  claim  of  the  McEwens,  for  34  years.  The 
averments  of  the  bill  fully  admit  the  possession  and  holding  of 

» 

the  McEwens. 

The  statute  above  cited  uses  the  terms  "seized  and  possessed  oj 
the  premises.'"  As  above  shown,  "seizin  necessarily  implies  pos- 
session, there  being  no  difference  between  "seiziu"  and  "posses- 
sion," if  the  possession  is  with  the  intent  on  the  part  of  him  who 
holds  it  to  claim  a  freehold.  Yet  there  are  distinctions  in  some 
of  the  applications  of  the  word ;  thus,  though  there  may  be  a 
concurrent  possession  of  the  same  lands  by  several  persons, 
there  cannot  be  such  concurrent  seizin." 


"Seizin  is  applied  to  estates  of  which  there  is  no  present  pos- 
session, such  as  remainders,  meaning  that  the  party  has  a  fixed 
vested  right  of  future  enjoyment.  Moreover,  the  Lands  may  be 


54 

for  a  time  vacant,  as  regards  possession,  but  seizin  (cannot,  at 
common  law,)  be  in  abeyance  or  suspense  ;  it  must  always  be  in 
some  one  as  freeholder." 

Abbott's  Law  Diet.,  Vol.  2,  457-58. 
1  Washt.,  E.  P.  3,  et  seq. 
4  Kent  Com.,  388-89. 

"Seizin  means  possession  under  some  legal  title,  or  right  to 
hold.  The  possession  may  be  shown  by  parol.  The  title  must 
be  sliowii  by  proper  conveyance."  Abbott's  Law  Diet.,  Vol.  2,  p. 
458. 

Ford  vs.  Gomes,  49. 

"  Seizin  in  law  arises  when  the  grantor  of  real  estate  gives  the 
right  of  present  possession  to  the  grantee.  Seizin  in  deed  is  the 
actual  possession  of  the  freehold  estate." 

Hart  vs.  Dean,  2  Mac  Arthur,  60. 

Possession  in  law  is  the  control  or  custody  of  a  thing ;  detention 
of  anything  as  one's  own  and  for  his  enjoyment,  occupation, 
actual  or  constructive,  of  such  object  or  property,  and  as  applied 
to  lands,  means  an  actual  residence  on  the  land,  or  such  cultiva- 
tion, use  and  enjoyment  of  the  same,  by  visible  acts  of  ownership, 
as  would  give  notice  to  the  owner  and  others  of  the  adverse  pos- 
session of  the  land. 

Kimbo  vs.  Hamilton,  28  Tex.  560. 

The  owner  may  be  said  to  have  an  "estate"  in  possession,  unless 
there  be  some  intervening  estate  in  the  land,  the  owner  of  which 
has  a  present  paramount  claim  as  against  him. 

Campau  vs.  Campau,  19  Mich.  116-123. 

Under  the  averments  of  the  bill  it  is  evident  that  the  McEwens 
were  seized  and  possessed  of  this  land  when  the  deeds  were  ex- 
ecuted in  May,  1856,  by  the  Millspaugh  heirs,  if  not  in  1849, 
when  the  land  warrant  was  located  and  patent  issued. 


55 

Twenty  years  actual  possession,   claiming  tide  against    the 
world,   is  complete  bar  to  other  claims. 
LavaUe  vs.  Strobel,  89  111.  370. 

It  has  been  held  that  "upon  a  possession  of  36  years  by  one 
tennant  in  common,  not  paying  or  accounting  with  his  co-tenants 
for  rents  and  profits,  or  recognizing  his  rights  to  the  premises,  an 
ouster  would  be  presumed,  and  that  the  occupant  held  adversely, 
and  that  an  entry  was  barred  and  a  recovery  could  not  be  had  in 
ejectment." 

Doe  ex  dem,  etc.,  vs.  Prosser,  1  Cowpr.  B.  217. 

Also,  "where  one  tennant  in  common  disseizes  other  co-ten- 
nants,  and  holds  adversely,  the  statute  will  bar  an  action  by  his 
co-tenants,  and  it  was  held  that  the  sale  of  the  whole  tract  by  one 
co-tennant  to  a  third  person,  ihe  sale  being  followed  by  adverse 
possession,  amounts  to  an  ouster  or  disseizen  of  co-tennants,  and 
the  statute  of  limitations  will  bar  their  action  or  entry." 

Goervey  vs.  Urig,  18  111.  238. 

Even  in  case  of  a  trustee,  the  statutes  of  limitation  will  run, 
the  rule  being  well  established  that  "so  long  as  the  duties  of  the 
trustee  remain  undischarged,  the  trustee  cannot  avail  himself  of 
the   statute  of  limitations  for  his  defense.      Bat  if  the  trustee 
openly  denies  the  trust  and  acts  adversely,  the  statute  will  begin  to 
run,  and  mat/  ultimate  in  a  bar  to  the.  rights  of  the  cestui  que  trust." 
Albretch,  Adm.,  etc.,  vs.  Wolf,  Aclmx.,  etc.,  58  111.  186. 
Taylor  vs.  Qnayle,  91  111.  378. 

Neither  the  statute  of  limitation  nor  any  rule  of  laches  runs 
against  a  party  in  possession.  Such  rules  are  solely  for  the  pro- 
tection of  the  party  in  possession  against  claimants  out  of  pos- 
session. 

Mill*  vs.  Lockicood,  42  111.  110. 

"It  is  well  settled  that  where  courts  of  law  and  equity  have 
concurrent  jurisdiction,  a  claim  barred  at  law  will  be  barred  in 
equity,  and  even  where  the  jurisdiction  in  equity  is  exclusive,  if 
the  remedy  sought  is  analagous  to  a  remedy  at  law,  the  limita- 
tion will  apply." 


56 

"In  cases  of  direct  and  express  trusts,  the  statute  of  limitations 
will  apply  from  the  time  the  trust  was  disavowed  by  the  trustee,  and 
an  adverse  right  or  interest  is  insisted  upon,  and  made  known  to 
the  cestui  que  trust." 

Hancock  vs.  Harper,  86  111.  445. 

Thus,  even  if  a  relation  of  trust,  as  is  averred,  existed  in  the 
case  at  bar,  the  trustees,  the  McEwens,  certainly  disavowed  it  in 
1856,  and  set  up  an  adverse  claim  under  the  deeds,  and  held  the 
same  over  30  years,  made  that  fact  known  to  the  cestui  que  trust, 
the  Millspaughs  at  that  time  when  they  procured  their  deeds, 
and  the  statute  of  limitations  then  commenced  to  run,  if  not  in 
1849,  when  the  adverse  possession  of  the  McEwens  commenced, 
under  the  above  decisions  the  statutes  of  limitations  commenced 
to  run  at  one  or  the  other  of  those  dates,  and  under  either  of  them 
is  a  complete  bar  to  the  relief  sought  by  the  complainant. 

NOTICE     OF   THE     SUPPOSED    FRAUDULENT    ACTS    OF    THE    M'EWENS 
< 

TO  THEIR  GRANTORS. 

We  do  not  think  the  averments  of  the  bill  as  to  notice  on  the 
part  of  the  grantees  of  the  McEwens,  of  their  supposed  fraudulent 
acts  in  obtaining  the  title  to  the  land  in  controversy,  sufficient  to 
merit  the  consideration  of  the  Court,  and  even  if  of  importance 
in  some  proceedings,  they  are  immaterial  in  our  view  of  the  case, 
for  all  rights  of  Gilbert  D.  Millspaugh  were  extinguished,  if  he 
ever  had  any,  long  before  the  title  passed  from  the  McEwens  by 
the  quit-claim  deeds  of  1856,  and  the  undisputed  possession  by 
them  of  the  land  until  1880,  twenty-four  years,  beside  the  adverse 
holding  of  possession  and  payment  of  taxes  from  18  "0  to  1880. 

The  complainant  has  endeavored  to  weave  a  vail  of  fraud  over 
all  the  acts  of  the  McEwens  from  the  first  agreement  to  procure 
the  land  warrant  to  their'  sale  of  the  lands  in  1880.  But  the 
gauzy  fabric  is  too  thin  to  avail  them  at  this  late  day  There  was , 


57 

as  we  viewed  it,  no  fraud  in  the  original  agreement  to  procure 
the  land  warrant,  pay  all  the  expenses  and  have  half  of  the 
land.  This  was  but  one  of  a  thousand  similar,  ordinary  business 
transactions,  and  one  only  of  principal  and  agent  or  attorney, 
and  terminated  when  the  warrant  was  procured,  located  and  the 
patent  issued,  or  at  fartherest  when  the  deeds  were  made  to 
the  McEwtns  in  1856.  There  was  no  effort  at  concealment, 
nor  was  there  motive  for  it,  at  least  until  1852,  when  the  two 
railroads  passed  through  the  land,  for  before  that,  it  was  unques- 
tionably a  swampy  piece  of  land,  of  little,  if  any  more,  value  than 
it  had  cost  in  cash  on  the  part  of  the  McEwens. 

As  we  have  shown,  David  Millspaugh  and  Christina  Lynn  un- 
doubtedly were  notified  of  the  issuance  of  the  land  warrant  in 
June,  1847,  by  the  Commissioner  of  Pensions,  whose  duty  it  was 
to  notify  all  applicants,  and  their  attorneys  if  any  in  the  case,  of 
such  fact.  The  acts  of  the  McEwens  were  all  public  in  locating 
the  land  and  procuring  the  patent,  and  in  appearing  in  the  con- 
demnation proceedings  of  the  111.  Cent.  R.  R.  Co.,  in  1852.  If 
this  land  was  so  valuable,  it  is  singular  that  some  other  specula- 
tors, of  whom  there  were  always  a  plenty  around  Chicago, 
did  not  purchase  this  land,  as  the  legal  title  icos  in  the 
Millx/ianghs  in  the  land  warrant,  the  patent  office  and  the 
land  office  of  the  government  in  Chicago,  within  a  short 
distance  of  the  land,  and  any  one  could  have  ascer- 
tained that  the  legal  title  was  in  tbe  Millspaughs.  But  if  the 
averments  of  the  bill  are  true,  no  one  approached  the  Millspaughs 
to  purchase  the  very  valuable  land  until  the  McEwens  came  to 
purchase  it,  in  1856.  The  only  thing  that  remains  of  even  ap- 
parent fraud  at  that  time,  on  the  averments  of  the  bill,  is  the 
reprepresentations  of  the  McEwens  as  to  the  value  of  the  land, 


58 

and  their  averred  statements,  that  by  virtue  of  the  payment  of 
taxes  for  over  seven  years,  that  they  owned  the  whole  tract,  and 
the  charge  of  inadequacy  of  price  paid  for  the  quit-claim  deeds. 
We  think  we  have  fully  shown  that  if  the  statements  of  the 
McEwens  were  as  averred  in  the  bill,  they  were  only  their  opin- 
ions, and  do  not  amount  to  any  such  undue  influence  or  impo- 
sition as  in  equity  would  justify  any  court  to  interfere. 

The  Millspaughs  were  all  of  age,  sound  of  body  and  mind,  in 
1856,  fully  competent  to  contract,  and  not  under  any  distress  or 
compulsion,  and  if  not  satisfied  with  the  price  offered,  or  the 
statements  made  by  the  McEwens,  they  should  not  have  sold 
their  interests  or  made  the  deeds. 

But  if  all  the  averments  of  the  bill  were  taken  as  true,  the 
laches  manifested  on  the  part  of  Archibald  Millspaugh  and  the 
other  heirs  in  acquiescing  in  the  title  and  possession  of  the  land 
obtained  and  enjoyed  by  the  McEwens  under  the  deeds  of  1856, 
and  that  of  the  complainant  until  last  year,  would  defeat  any 
supposed  rights  now  claimed  under  the  bill.  Most  of  the  parties 
to  the  transactions  are  now  dead,  and  the  averments  of  conceal- 
ment of  the  issuing  of  the  land  warrant,  its  location,  and  the 
procuring  of  the  patent  until  1856,  upon  which  exists  all  the 
charge  of  fraud,  cannot  be  proved,  if  it  ever  existed.  David 
Millspaugh  died  in  1849,  and  his  widow  (Jane)  in  1851,  and  his 
son  (Archibald)  in  1871,  and  his  widow  (Sarah  E.)  in  1877,  and 
Milton  McEwen  is  also  dead.  It  is  a  fair  presumption  that 
William  S.  Millspaugh  and  wife,  and  Christina  Lynn  and  hus- 
band, are  dead. 

The  statutes  of  limitations  have  long  since  barred  the  claims 
of  the   complainant,  if  he  ever  had  any,  as  we  think  we  have 


59 

shown,  and  that  there  is  now  no  relief  for  the  complainant  upon 
any  grounds  presented  in  the  bill,  nor  upon  any  view  taken  of  the 
case  as  presented  by  the  complainant,  and  we  therefore  ask  that 
the  demurrer  be  sustained,  and  the  bill  dismissed. 

BANDERS  &  HAYNE8, 
For  Thomas  C.  and  Miltoii  McEwen. 


-KF 
V7<. 

1H5 
I2SS 


